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Notes -
Does SCOTUS normally "save the best till last"? We have seen a flurry of opinions at the end of the term, and they appear to be in roughly increasing order of importance, with no sign of the 3-4 biggest cases, which I think are:
The first three are all "Is this even the same Constitution?" level cases, and noisy idiots on both sides think that Watson is a "Do we still have a functioning democracy?" question, although in my view it is an unimportant technicality of election law. I would say the only cases of this importance which have been decided are Learning Resources (the tariffs) and Callais (race-based redistricting), both of which had strong practical reasons for the majority pushing a decision as fast as possible. Cook and Slaughter weren't even argued late in the term.
So the question I am asking is whether the justices are holding the biggest cases to drop together on the last day of the term out of some daft sense of drama (or more nefariously, to minimise the amount of public and press attention they get compared to dropping them separately), or is there some hitch delaying getting the opinions written. I can definitely imagine the cases being delayed because the justices are writing increasingly angry concurrences and dissents at each other, but it is also within the realms of possibility that there is still substantial haggling about getting to 5 votes. Barbara and Slaughter are both cases where a plurality opinion would embarrass the Court as well as being a practical headache.
Birthright citizenship is obviously supported by both Constitution and statute, but I imagine there's a lot of wrangling over the wording of the opinion of the court (which may be unanimous, maybe 8-1 if Alito is as much of a hack as one ex-poster claims).
The Court probably didn't consider it, but the recent California primary election demonstrates that counting late votes is at least an important technicality of election law, though California goes beyond postmarks and allows ballots with a hand-written date before the election day.
Birthright citizenship has the awkward situation where there's a lot of circumstantial evidence that the modern read isn't the same as the historical one - most clearly with needing explicit statutory authorization to make Native Americans citizens - but the modern one has been around and has so many massive ramifications that the stare decisis arguments vastly overwhelm a bare EO.
If the court finds a birthright citizenship not only supported but required by the Constitution, I could see a 7-2 or even 6-3 breakdown (though they might be styled as concurrence-in-judgement). Roberts has a lot of motivation to constrain the bounds of the decision and to get a 9-0 or 8-1 if at all possible, though, and limiting the opinion to just 'existing statutes say people born here are citizens, change the law and then we can talk again' is both easily available and bypasses a lot of the messier questions, if only because the statute (despite using the exact same words) was written in
1952ED:the 1920s, so it simplifies all of the originalist arguments. But it would be a really obvious punt.There's not really much useful to actually be gleaned from native Americans regarding birthright citizenship cause they are a very weird and unique situation.
The Indian naturalization act was necessary because of previous decisions that treated the tribes as sovereign entities of their own. (see Cherokee Nation v Georgia and Worcester v Georgia). Due to this, they actually had a lot of powers that states didn't have like the ability to independently enter into treaties with other nations. So they couldn't be entitled to birthright citizenship because they in a weird legal sense were not considered to be in the US "properly", they were considered to be in the tribal land. Despite that about 60% of indians were already citizens anyway due to the Dawes act, having a citizen parent, treaty agreements (like the Choctaw tribe), and many other factors. And yes even now tribes still exist in a very strange legal status, as "domestic dependent nations". with their own sovereignty rights.
It does make for an interesting possibility depending on how the Indian Naturalization Act is worded. If it is particular enough, it might be possible for a non citizen to give birth on tribal land outside of proper US jurisdiction and therefore not get the kid birthright citizenship. I imagine it would be ruled as included now from the act but it would depend on the actual words there.
The reason the native American matter is important is that foreigns also belong to a sovereign polity that is not the USA .
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