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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.I can see the logic for the Native American decision; here are all these tribes living on this land mass we call America, and they have their own little realms or confederations or what have you. Meanwhile we are creating the political entity called the United States of America, and just because we are living cheek-by-jowl with these people does not make them automatically citizens of our polity, anymore than the French living in that chunk of land down south are citizens.
Then the USA embarked on a massive programme of expansion, and settled more of the landmass, and eventually ended up being the dominant state having settled, granted statehood to, and purchased territory all around them, so now the Native Americans were a minority living on the land and where exactly were they citizens of? Their own confederations were gone, they weren't foreigners so couldn't be packed off home, solution: they're American citizens (with some special circumstances added on).
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