SCOTUS Term 25-26

[FLaw47]

Sounds like the government is getting the crap kicked out of it in this birthright citizenship case

IMO, the government's position is preposterous. And if you're fine overturning that, I don't know why a future (hypothetical and unlikely) liberal SCOTUS wouldn't just feel empowered to "fix" gerrymandering, abortion, wedding cakes, and everything else. Precedent either counts or it doesn't.

 

[FLaw47]

@Aardvark86, why did SCOTUS even decide to hear this case? Just to put it to bed?

 

[BigPapaWhit]

Bumping before it gets buried on page three.

 

[Rastafarian]

Curious about this:



why would the Supreme Court vacate this? He was already found guilty by jury.

 

[DailyBuck7]

Curious about this:



why would the Supreme Court vacate this? He was already found guilty by jury.

Because the lower court applied the wrong legal standard and instructed the jury incorrectly.

 

[Aardvark86]

So, belatedly…happy Easter

I finally listened to the oral arguments in the birthright citizenship case on my drive up to dc this morning. A few observations.

1. It was a good argument and all of the justices were exceptionally well behaved, perhaps given the seriousness of the matter. It was also good in that it not only included questions as to the basic theory, but also a ton of interesting questions on outlier scenarios at the periphery.
2. Sauer actually did a very good job presenting the government's “subject to the jurisdiction” argument. I actually do think the theory hangs together well, and if it were 1900 or so, I’d think his chances much better.
3. I don’t profess to be nimble with either the leg history (there's a lot, and it's not all cutting one way) or wong Kim ark (a long a somewhat archaic style makes it tough to penetrate), but I have a sneaky suspicion the court is going to restrict wka to its facts (where there was no dispute that Mr ark had established us domicile). TBC, I don't think that necessarily means the G wins here.
4. IMO, the weak part of the g’s theory is that it seems to stitch together loosely a whole bunch of outlier data and interpretive points. Not as coherent as they try to suggest. CJR sort of started with this.
5. The justices did indeed push sauer harder than ms wang but I don’t think it was as hard as some press reports suggest. That said, everybody was pressure testing sauer including some tough practical implications questions, and I doubt he will prevail.
6. Best and most interesting questions; a) kagan pushing him on what standard would have to be met to overcome the historical understanding/consensus of how birthright has been accepted as a practical matter (sauer argued that the history is not as consistent as she suggested, noting some lore from an fdr dos official who didnt think wka provided for birthright); b) kav (and to a lesser degree Barrett) pressing on whether Congress can by legislation interpret “subject to the jurisdiction” (both advocates said yes, but Wang said it’s only a one way door that allows broadening citizenship, which doesn’t smell quite right); and c) Gorsuch and Barrett asking whether aside from the statute and solely based on the constitution Indians born in the us are citizens (sauer said yes, wang no/only by statute, interestingly).

Again, at the end of the day, I still think this’ll come down to the kagan point. Wang started her argument effectively along the lines of “ask any American what they understand to be the rule”. I think that’s what carries the day.

 

[Aardvark86]

Because the lower court applied the wrong legal standard and instructed the jury incorrectly.

I’ll confess I haven’t followed the bannon saga as I just don’t care what happens to him because I think he’s an opportunistic schmuck. I’ll defer to buck as to the answer, but it is my understanding that the result here is similar to another case.

 

[Aardvark86]

@Aardvark86, why did SCOTUS even decide to hear this case? Just to put it to bed?

I think that’s a bIg part of it - big enough that they could see they would eventually have to, and maybe now before the eo gets applied in some specific deportation context where someone’s on a plane to Cuba, or being blocked at the ballot box

 

[DailyBuck7]

I’ll confess I haven’t followed the bannon saga as I just don’t care what happens to him because I think he’s an opportunistic schmuck. I’ll defer to buck as to the answer, but it is my understanding that the result here is similar to another case.

I was going by an NBC summary of the case. It was a little more subtle than I thought. The Supreme Court granted certiorari vacated the judgment and remanded case to district court to consider the DOJ's motion to dismiss the indictment. https://www.supremecourt.gov/orders/courtorders/040626zor_5iek.pdf? Don't know if this right, but here is how Chatgpt summarized it:

"The Court did not directly “overturn” the conviction on the merits. Instead, it used a common procedural move (often called a GVR order — grant, vacate, remand) to clear the way for the lower courts to reconsider the case given the government’s request to dismiss it." Not my area of the law, but it looks like the Court of Appeals decision no longer stands.

No big fan of Bannon. On the other hand the FBI agents and bosses who authorized the perp walk for Peter Navarro should have been severely punished for acting like common thugs.