For the first time in U.S. history, a sitting president attended Supreme Court oral arguments to witness the fate of a centerpiece of his agenda, and the record books will likely document it as a monumental flop.
‘The same Constitution’
Supreme Court justices interrogated the foundations of Donald Trump’s attempted birthright citizenship ban for more than two hours. Every lower court has rejected Trump’s executive order as an unconstitutional attempt to override the 14th Amendment’s citizenship clause, and the legal community appears to agree that a healthy majority of the Supreme Court is likely to follow suit.
A couple of caveats: Supreme Court outcomes are famously hard to predict from oral arguments, and the job of the justices is to ask tough questions. That said, several of the exchanges were representative or telling, including from all three Trump appointees: Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh. Their concerns with the Trump’s legal rationale seem to leave little room to uphold the executive order.
The quotation of the day, however, came from Chief Justice John Roberts.
At one point, Trump’s former criminal defense attorney turned solicitor general John Sauer suggested that the Citizenship Clause needed to be reimagined for a “new world” where eight billion people are a plane ride away from having a child with U.S. citizenship.
“Well, it’s a new world. It’s the same constitution,” Roberts shot back.
‘An unprecedented event’
Former White House and Department of Homeland Security lawyer Andrea R. Flores, an immigration expert who served during the Obama administration, said that oral arguments showed a flailing Sauer unable to defend the ban in any respect.
“If you can’t even defend it on the policy, you’re certainly not winning on the defense of the law,” Flores said.
During our Substack Live conversation, Flores and I rattled off some of the sharpest and most surprising questions from Republican and Democratic-appointed justices, including an unexpected fastball from Clarence Thomas. We also unpacked the norm-incinerating message sent by Trump’s attendance days after he attacked the justices as “STUPID.”
Flores, who helped draft judicial security legislation as former chief counsel in the U.S. Senate, read Trump’s gambit as intimidation, but she said the questions showed that effort failed.
“I thought the Supreme Court stood strong in the face of an unprecedented event,” she said.
Watch the full conversation at the top of this newsletter.
