The Gavel: What’s next for birthright citizenship

The Hill's weekly courts news digest.

By Ella Lee and Zach Schonfeld   |   Wednesday, July 2 By Zach Schonfeld and Ella Lee Wednesday, July 2 © Greg Nash What's next for birthright citizenship The battle over birthright citizenship is just getting started.   Challengers to President Trump's executive order view Friday's Supreme Court ruling limiting nationwide injunctions as a setback, but not fatal, to their efforts.  With the 30-day clock ticking until the Trump administration can try to start denying citizenship to newborns, the plaintiffs are already back in court mounting an aggressive push.  William Powell, an attorney for one group of plaintiffs, said at a hearing he saw "substantial outreach" since Friday's ruling from fearful and concerned parents seeking to join a class action effort.   "They want to see how fast we can get class relief because they are afraid about their children and their babies and what their status might be," said Powell, senior counsel at Georgetown's Institute for Constitutional Advocacy and Protection.   The Supreme Court ruled 6-3 along ideological lines that universal injunctions likely exceed federal courts' powers, delivering a key blow to efforts to topple Trump's agenda in dozens of lawsuits.  But the high court's decision still leaves the birthright citizenship plaintiffs with tools in their toolbox, sparking a new phase of the legal battle.  Class actions were one pathway floated by the court, and immigration groups quickly pounced, hoping to get the same practical effect as a nationwide injunction by certifying a class of migrants anywhere in the country impacted by Trump's order.  The action is now playing out in federal courtrooms in Maryland, New Hampshire and Washington, D.C.  In Maryland, U.S. District Judge Deborah Boardman, an appointee of former President Biden, has set a written briefing schedule through July 9 on immigration groups' motion.  Powell stressed at Monday's hearing that Boardman needs to rule quickly, previewing the case may quickly boomerang back to the Supreme Court.  "There may be appeals either on our side or on their side," Powell said. "And July 27th is just a pretty close date."  Justice Department lawyer Brad Rosenberg doubled down on Trump's order, insisting it's the government's position that birthright citizenship is "not guaranteed by the Constitution" and an injunction "does nothing" to change that view.   However, he maintained that the executive order would not be operative until the 30-day clock runs out.  "That's your understanding or is that the position of the United States?" Boardman asked.  "That's my understanding," Rosenberg said. "And I can confirm that, but I have a high degree of confidence in that understanding."  DOJ confirmed that position in a Tuesday filing, which said the order won't be enforced until July 27, but the Trump administration may start developing and issuing public guidance about its plans to implement it.   In New Hampshire, the American Civil Liberties Union is embarking on a similar effort before U.S. District Judge Joseph Laplante, an appointee of former President George W. Bush.  Laplante will hold a July 10 hearing on whether to grant a new injunction.  Another group of private plaintiffs suing in the nation's capital amended their lawsuit on Tuesday to take the form of a class action, but no schedule is set yet.  Meanwhile, the 22 Democratic-led states suing may have a different pathway.   The Supreme Court's opinion stresses they still are entitled "complete relief." The states contend that allowing Trump's order to take effect in some parts of the country is unworkable, so they are still entitled to a nationwide injunction.  "I think we will very clearly be able to meet the standard that even this Supreme Court set out for states to meet," New Jersey Attorney General Matthew Platkin (D) said on CNN Monday.    Welcome to The Gavel, The Hill's weekly courts newsletter from Ella Lee and Zach Schonfeld. Click above to email us tips, or reach out to us on X (@ByEllaLee, @ZachASchonfeld) or Signal (elee.03, zachschonfeld.48).   Not already on the list? Subscribe here. IN FOCUS What we learned from the justices this term Kavanaugh is ready to hear your emergencies  If you ask Justice Brett Kavanaugh, the Supreme Court has a glowing "OPEN" sign on its front door.   Trump's second Supreme Court pick is signaling he still wants to get involved in controversial emergency disputes. And the ruling on nationwide injunctions did nothing to change that.  Kavanaugh in a solo opinion Friday wrote that the justices will often still need to provide nationally uniform answers on whether a new federal statute or executive order can be enforced in the yearslong period before litigation is resolved.  Rejecting the notion that those emergency decisions are a distraction, Kavanaugh called it a "critical part of our job."  "When a stay or injunction application arrives here, this Court should not and cannot hide in the tall grass," Kavanaugh wrote.  Kavanaugh's view would have the Supreme Court continue to play a dominating role in the legal battles surrounding Trump's agenda.  Kavanaugh acknowledged his position will drag the court into controversy, but he warned that avoiding it "is neither feasible nor appropriate."  "Determining the nationally uniform interim legal status for several years of, say, the Clean Power Plan or Title IX regulations or mifepristone rules is a role that the American people appropriately expect this Court—and not only the courts of appeals or district courts—to fulfill," Kavanaugh wrote.  It's not just the court's emergency docket.  Kavanaugh repeatedly indicates he wants to take up more cases on the court's merits docket.  Just this week, Kavanaugh wanted to hear next term Oregon's defense of its 90-day limit to gather recall election signatures, American Airlines' bid to validate its Northeast Alliance with JetBlue and a constitutional challenge to California's pig welfare law.  As is typical for him, Kavanaugh didn't explain his reasoning.  But on occasion, the justice will speak out to send a signal to the parties.  When Kavanaugh in early June declined to provide the crucial fourth vote needed to take up challenges to state bans on possessing AR-15 rifles, he told the challengers to come back in a year or two after other appeals courts weigh in.  So buckle up. Because as Kavanaugh put it Friday, the Supreme Court is open "24/7/365."  Liberal justices splinter   The Supreme Court's liberal justices may seem like an unwavering united front, but this term told a different story.   A faint rift between the high court's left flank emerged in several decisions this spring, where Justice Elena Kagan broke ranks with Justices Sonia Sotomayor and Ketanji Brown Jackson.   Kagan was the sole Democratic-appointed justice to side with the court's conservative majority in four argued cases this term. Kagan also largely split from the other liberal justices in a fifth case, though that decision was deeply fractured.  In a challenge brought by Food and Drug Administration, Kagan joined the court's six conservative justices in ruling for the vape industry. The majority broadened where companies can challenge product marketing denials, drawing a dissent from Jackson and Sotomayor.   Kagan joined the conservatives again in a bid by the energy industry to revive its effort to axe California's stricter car emission standard. They ruled that fuel producers have standing to sue over the rule, again spurring pointed dissents from the other two liberal justices.   Kagan has long held a reputation as a consensus builder. She was in the majority 83 percent of the time in all cases this term, according to an analysis by SCOTUSblog — more than Justices Clarence Thomas, Neil Gorsuch and Samuel Alito.  As Kagan splintered from her fellow liberal justices, the consensus between Jackson and Sotomayor also sometimes faltered.   Neither of the more senior liberal justices joined several of Jackson's most pointed dissents.   Most notably, both Kagan and Sotomayor declined to sign onto her scorching dissent in the birthright citizenship case, where she suggested the court's decision marked an "existential threat to the rule of law."    Jackson issued a solo dissent of the court's decision in the California emissions case, as well, where she argued that the case "gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens."  And in another case, Sotomayor joined all of Jackson's dissent but distanced herself from a footnote where the court's most junior justice shaded the majority's "unfortunate misunderstanding of the judicial role" and flimsy approach to textualism that is "somehow always flexible enough to secure the majority's desired outcome."  There's no indication the apparent divides spell serious trouble for the court's liberal coalition; each issued fiery dissents this term, signed on to by the others, as well.  But the convergence raises questions about just how in lockstep the justices really are.  Clarence Thomas's wish list  Justice Clarence Thomas is laying out his vision for the next phase of the conservative legal project. As the Supreme Court's longest-serving sitting justice, Thomas has found his moment on the 6-3 conservative supermajority after entering the court in 1991 on its ideological fringes. He unapologetically calls for overturning precedents and reconsidering legal approaches and has already been part of a massive shift toward an originalist vision on guns, abortion and other culture war issues. But Thomas made clear this term he still has a long wish list, on issues big and small. When the justices ruled in favor of a straight woman claiming employment discrimination, Thomas condemned a 1973 Supreme Court decision, McDonnell Douglas Corp. v. Green, for leading lower courts astray by creating a "judge-made doctrine."  "Atextual, judge-created legal rules have a tendency to generate complexity, confusion, and erroneous results," Thomas noted. Known as the McDonnell Douglas framework, judges use it to resolve cases when an employee lacks direct evidence of discrimination. A lower court relied on the framework to rule that members of a majority group must clear a higher legal bar than minorities to prove their lawsuits — a contention the Supreme Court unanimously rejected.  But Thomas wants to go further.  "In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool," Thomas wrote.  Weeks later, Thomas called for cabining Section 1983, a statute that allows people to sue local and state officials for violating their federal or constitutional rights.  The court ruled along ideological lines that Planned Parenthood couldn't invoke the statute to sue South Carolina for excluding the abortion provider from the state's Medicaid program.   And in a case involving school disability claims, Thomas expressed an eagerness to clarify the appropriate legal standard to sue the government under the Americans with Disabilities Act.  Thomas's vision is scattered across some of his dozen concurrences in argued cases this term, more than any of his colleagues.  It only adds to his attention-grabbing calls over the years for overturning significant constitutional precedents.  When the court overturned Roe v. Wade, Thomas wrote a solo opinion calling for all the court's substantive due process precedents to be reconsidered, including decisions that protect the right to contraception, same-sex marriage and same-sex intimacy.  He has also called for reconsidering New York Times v. Sullivan, the landmark ruling that sets a high bar for public officials to win defamation lawsuits.  SIDEBAR 5 top docket updates School mental health: Sixteen Democratic-led states sued the Trump administration Monday challenging the Department of Education's cuts to mental health funding for schools.  Pollster problems: Lawyers for Trump dropped a lawsuit against Iowa pollster J. Ann Selzer and the Des Moines Register — but then refiled it.   Big development for Big Law: The Trump administration is appealing a ruling blocking Trump's executive order targeting the law firm Perkins Coie, one of four Big Law firms Trump issued orders against with whom judges have sided. It could become an appeals court's first chance to weigh the punitive orders.  Not guilty plea: Rep. LaMonica McIver (D-N.J.) entered a not guilty plea last week to charges she assaulted and interfered with immigration officers at a New Jersey detention center during a congressional oversight visit with two other lawmakers.  DOJ sued who? The Trump administration last week sued the U.S. District Court for the District of Maryland and all 15 of its judges over an order slowing down its speedy deportation efforts.  In other news Try again next year: Chief Justice John Roberts acknowledged that "things were a little crunched" near the end of this year's Supreme Court decision season. Roberts told a crowd of attorneys gathered in North Carolina Saturday that he'll "try to space it out a little better next year, I suppose."  Summer vacay mode: Gorsuch's seat on the Supreme Court's bench was empty Friday, as the justice skipped the final day of opinion releases — notable, but not unusual.  Trump attorney tells judge to hurry up: Trump is, again, asking the judge overseeing the president's lawsuit against famed journalist Bob Woodward to move things along. The lawsuit has stalled for months, and Trump has repeatedly pressed the judge to rule on a dismissal motion pending since 2023. In Trump attorney Robert Garson's latest letter, sent Thursday, he tries to get the judge's attention by invoking Star Trek and claiming the lack of progress adds an "unnecessary burden" on Trump's presidency.  DECISION ROUNDUP The court issued its remaining opinions in argued cases this term.   Nationwide injunctions restricted  In a 6-3 decision along ideological lines, the Supreme Court curtailed federal judges' ability to issue nationwide injunctions in Trump's challenge over his birthright citizenship executive order.   But as we explained above, the cases are far from over.  Louisiana redistricting case to be reheard  The Supreme Court was expected to release an opinion regarding Louisiana's addition of a second majority-Black congressional district but instead announced it will hear a new round of arguments.  The justices provided no reasoning or focus of the new argument, though Justice Clarence Thomas dissented, saying he would have decided the case.  Until the court's ultimate decision, Louisiana's map will remain in effect.   LGBTQ books, porn age verification and more  The court issued a slew of other important decisions at the end of opinion season:  The justices ruled justices ruled 6-3 along ideological lines in favor of  Maryland parents who sought to opt their children out of instruction using books with LGBTQ themes.   The justices ruled 6-3 along ideological lines in favor of Maryland parents who sought to opt their children out of instruction using books with LGBTQ themes.   The court ruled 6-3, also along ideological lines, that Texas's age-verification law for porn websites is constitutional.   The justices ruled 6-3 along ideological lines that individual Medicaid patients cannot sue to enforce their right to pick a provider, a victory for South Carolina in its bid to cut off Medicaid funding for Planned Parenthood.   In another 6-3 decision — not along ideological lines — the justices upheld the constitutionality of an ObamaCare requirement that insurance companies cover certain preventive care recommended by an expert panel.   The court ruled 6-3, not along ideological lines, that a Texas death row inmate has the legal right to sue over the state's laws governing DNA testing in a bid to test evidence he says would block his execution.  THE ORDER LIST Cases the Supreme Court is taking up — or passing on — next term. In: Campaign finance The Supreme Court took up seven new cases at its conference, filling up much of next term's docket.  The biggest news came in NRSC v. FEC, where the Supreme Court agreed to take up Republicans' effort to strike down federal limits on political parties' spending made in coordination with campaigns.  The case is brought by the National Republican Senatorial Committee, National Republican Congressional Committee, Vice President Vance and former Rep. Steve Chabot (R-Ohio).  It's the latest major campaign finance case to reach the Roberts Court, which in 2010 upended campaign finance law under the First Amendment in Citizens United v. FEC.  Here's a look at the other grants:  Calling all actuaries: In M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, the court will examine how withdrawal liability for multiemployer plans is calculated.  Internet provider copyright: In Cox Communications, Inc v. Sony Music Entertainment, the court will decide whether Cox as an internet service provider can be held liable under federal copyright law for not kicking out subscribers who repeatedly steal music.  Asylum: In Urias-Orellana v. Bondi, the justices will review a lower appeals court's finding that asylum seeker Douglas Humberto Urias-Orellana, who reported threats and physical mistreatment, would not face "persecution" if returned to El Salvador.  Fund shareholder lawsuits: The Investment Company Act of 1940 (ICA) regulates mutual funds and investment companies. Section 47(b) states that a contract that violates the ICA is unenforceable. In FS Credit Opportunities Corp. v. Saba Capital Master Fund, the Supreme Court will decide whether Section 47(b) allows private parties, like fund shareholders, to sue to void such contracts.  Michigan pipeline fight: In Enbridge Energy, LP v. Nessel, the court will decide whether the owner of the Line 5 pipeline in Michigan can move a lawsuit launched by Michigan Attorney General Dana Nessel (D) to federal court. Enbridge didn't make its request within the 30-day statutory window, and the justices will examine whether judges have authority to excuse the deadline.  Fugitives: In Rico v. United States, the Supreme Court will examine the "fugitive tolling" doctrine, which prevents defendants from receiving credit toward their prison sentence for time they are a fugitive. The court will determine whether the doctrine extends to supervised release.   Out: Eviction moratorium After considering it at 10 consecutive conferences, the court denied a landlord's lawsuit over Los Angeles' pandemic-era eviction moratorium, GHP Management Corporation v. City of Los Angeles. The landlord argued it violated the 5th Amendment's Takings Clause, which bars the government from taking private property without just compensation.  Thomas dissented, joined by Gorsuch, his fellow conservative justice. The duo expressed doubt about the moratorium and expressed a desire to resolve a split among the lower courts, warning the issue's importance "has not diminished" despite the COVID-19 pandemic ending.  "Even if it were otherwise, we would do well to clarify our case law now, rather than in the heat of the next national emergency," Thomas wrote.  Thomas also penned a statement as the court declined to hear MacRae v. Mattos, a former Massachusetts teacher's First Amendment appeal after she was fired for posting anti-transgender and anti-DEI TikToks.   Thomas said he agreed with turning away the case because of the posture of the teacher's petition. But he still raised concerns about the termination.  "It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption," Thomas wrote.  When the court declined to take up Wiggins v. United States, liberal Justice Sonia Sotomayor and conservative Justice Amy Coney Barrett jointly called on the U.S. Sentencing Commission to resolve the proper definition of a "controlled substance offense."   Defendants with two such prior felony convictions are deemed career offenders who can face significantly higher sentences. But courts have split as to whether the offenses must involve drugs prohibited by state law, federal law or either.  Three years ago, Sotomayor and Barrett made the same plea while acknowledging the commission lacked a quorum of voting members to take action.  Now they do, and the duo isn't happy with the lack of progress. They reminded the commission of its responsibility to "ensure fair and uniform application" of the guidelines.   Maybe: Cuba cruises The court asked for the Trump administration's views on three cases. Expect the administration to file its responses near the end of this year in time for the justices to consider adding the disputes to next term's docket.  In Havana Docks Corporation v. Royal Caribbean Cruises, Ltd., the justices are considering reviewing an appeals court ruling that tossed a $400+ million combined judgment against four major cruise lines for taking passengers to Cuba.  A federal judge found the cruise lines — Carnival, Norwegian, Royal Caribbean and MSC — violated Title III of the LIBERTAD Act, which allows U.S. nationals whose property was expropriated by Cuba to sue companies that traffic in the property.  The provision is controversial. Then-President Clinton suspended it when it was enacted in 1996, and administrations continued to do so until President Trump lifted the suspension  in 2019.  The cruise lines now face a lawsuit from Havana Docks Corporation, a U.S. company that built the port of Havana before Cuba's communist government extinguished its right to operate the docks. It seeks compensation for the hundreds of thousands of passengers the cruise lines disembarked in Havana.  Meanwhile, in Monsanto Company v. Durnell, the administration will weigh in on an effort by Bayer, the maker of Roundup weedkiller, to block lawsuits claiming it failed to warn consumers that the product's active ingredient causes cancer.  Bayer argues the suits are preempted by federal law, since the Environmental Protection Agency (EPA) approved a pesticide label for Roundup omitting any health warning about purported cancerous impacts.  And in Parker Hannifin Corp v. Johnson, the justices want the administration's views on the proper standard for lawsuits claiming a retirement plan fiduciary violated federal law by failing to remove "imprudent investments" from a plan within reasonable time.  PETITION PILE The court will release one last order list before their summer recess on Thursday.  Known as the "clean-up" conference, the justices clear out any petitions that were held pending an opinion in a similar case. Justices also issue any remaining written dissents and statements they've been working on from a decision to turn away a petition (though this year, the court cleared much of the backlog in Monday's list).  Here's what we're watching:  Transgender athlete bans: On Monday, the justices sent back to lower courts a series of transgender-related disputes in the wake of their decision upholding Tennessee's youth gender-affirming care ban. But they've held onto efforts by Arizona, Idaho and West Virginia to defend their transgender athlete bans. The latter two states have explicitly asked the justices to take up their cases now. The cases are Petersen v. Doe, Little v. Hecox and West Virginia v. B.P.J.  Montana abortion parental consent law: In Montana v. Planned Parenthood of Montana, the state is attempting to enforce its 2013 law requiring minors to obtain parental consent before having an abortion. Montana's constitution protects abortion and privacy, so the state's top court found the law violated minors' rights. Now, Montana wants the Supreme Court to reverse that decision by ruling that those rights are superseded by parents' rights under the federal Constitution to participate in their child's medical care.  Ampitheater protest: In Olivier v. City of Brandon, Gabriel Olivier is attempting to challenge a Brandon, Miss., ordinance limiting demonstrations near a public amphitheater. An evangelical Christian, Olivier uses loudspeakers and signs to protest the message "that everyone sins." Court records show he called females "Jezebels" and "whores" and men "sissies" as they walked by. Olivier was found guilty of violating the ordinance and paid a $304 fine. Now, he's trying to bring a federal civil rights lawsuit claiming a First Amendment violation. A lower court rejected it since he didn't raise the argument in his criminal case.  ON THE DOCKET Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: Today Bryan Kohberger, accused of slaying four University of Idaho students in 2022, is expected to enter a guilty plea to avoid the death penalty at a hearing before an Idaho state judge.   A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in a challenge to the White House's decision to stop providing American Sign Language (ASL) interpreters at press briefings and public events, brought by the National Association of the Deaf and two of its members.   A Maryland federal judge is set to hold a recorded call in a challenge to Trump's Schedule F executive order.   A federal judge in Boston is set to hold a temporary restraining order hearing in a lawsuit challenging a Defense Department policy limiting indirect costs for government-funded research at 15 percent.  A Maryland federal judge is set to hold a preliminary injunction hearing in a lawsuit challenging the cancellation of hundreds of National Institutes of Health grants dedicated to LGBTQ health.  Georgetown University Law is set to hold its annual Supreme Court Term in Review event.  Thursday No notable hearings scheduled Friday The courts are closed for Independence Day.   Monday A federal judge in Boston is set to hold a bench trial in a lawsuit against Secretary of State Marco Rubio and other Trump administration officials over their plans to deport students based on pro-Palestinian demonstrations. The trial is expected to last nine days. A federal judge in Maryland overseeing Kilmar Abrego Garcia's civil lawsuit there is set to weigh whether he must be physically returned to Maryland if released from custody on his criminal charges in Tennessee, in addition to the Trump administration's bid to dismiss the suit.     Tuesday No notable hearings scheduled. WHAT WE'RE READING The New York Times' Emily Bazelon and Mattathias Schwartz: Seven Chaotic Months in the Life of a New Federal Judge  The Associated Press' Patrick Aftoora-Orsagos: Once named opponents in the Supreme Court case that legalized same-sex marriage, now they're friends  The Atlantic's Duncan Hosie: Liberals Are Going to Keep Losing at the Supreme Court  Reuters' Mike Scarcella: What Republican, Democratic judges said about Trump's law firm orders  USA TODAY's Maureen Groppe: Supreme Court orders new review of transgender cases by lower courts  We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. Questions? Tips? Love letters, hate mail, pet pics? Email us: elee@thehill.com and zschonfeld@thehill.com.  On Signal: @elee.03 and @zachschonfeld.48.  Privacy Policy   |   View in Browser    |   Manage Subscriptions Sign Up for Other Newsletters   |   Unsubscribe  400 N Capitol Street NW Suite 650, Washington, DC 20001 Copyright © 1998 - 2025 Nexstar Media Inc.   |   All Rights Reserved.

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