Inset: US President Donald Trump sits during his meeting with NATO Secretary General Mark Rutte in the Oval Office of the White House in Washington on March 13, 2025 (Photo by Yuri Gripas/Abaca/Sipa USA (Sipa via AP Images)). Background, left to right: Ketanji Brown Jackson and Elena Kagan pose at a courtesy visit in the Justices Conference Room on September 30, 2022 in Washington, D.C. (Collection of the Supreme Court of the United States via Getty Images).
The U.S. Supreme Court on Thursday heard oral arguments in connection with a series of lawsuits challenging the president’s controversial executive order seeking to end birthright citizenship in the United States. However, instead of debating the merits of the order, the justices weighed the Trump administration’s numerous requests to curtail the string of nationwide injunctions issued by lower courts that almost immediately blocked the measure from taking effect.
Before hearing from attorneys representing the myriad plaintiffs in the case, U.S. Solicitor General D. John Sauer argued that the justices should narrow the scope of such global orders, applying them only to the named plaintiffs who sought relief. Should the administration prevail, it would bolster President Donald Trump’s effort to begin implementing his birthright citizenship order as well as many other executive actions that have been stalled by lower courts.
While the court’s conservatives appeared at least opened to the idea of siding with the administration on the issue of injunctions, the court’s liberal jurists, particularly Justices Elena Kagan and Ketanji Brown Jackson, repeatedly hammered Sauer over his position.
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In his opening statement, Sauer said that lower federal courts had already issued 40 universal injunctions against the nascent administration, asserting that such orders “prevent the percolation of novel and difficult legal questions” while operating “asymmetrically” by “forcing the government to win everywhere” while plaintiffs only need to win somewhere. He also asserted that there had been an exponential increase in global injunctions over the last 40 to 50 years.
Justice Sonia Sotomayor, the third and final liberal on the court, was the first to question Sauer, who argued that if a federal court holds that an administration’s actions were unlawful, the court can only grant relief to the plaintiffs (in certain situations, non-plaintiffs can incidentally benefit from the ruling).
“As far as I see it, this order violates four Supreme Court precedents,” she said. “And you are claiming that not just the Supreme Court, that both the Supreme Court and no lower court can stop an executive, universally, from violating those holdings by this court?”
Kagan, minutes later, wasted little time in getting to the administration’s endgame, telling Sauer to “assume you’re dead wrong” on the constitutionality of the Trump’s birthright order, and asking how that ultimately becomes the universal law of the land. She also assumed that under federal law, it would be highly unlikely that such a large number of people could be certified in the same class for the purpose of a legal challenge.
“Does every single person that is affected by this EO have to bring their own suit” she asked. “How do we get to the result that there is a single rule of citizenship that is the rule we have historically applied rather than the rule that the EO would have us do?”
She continued, saying, “How else are we going to get to the right result here which is on my assumption that the EO is illegal?”
Sauer responded that the court should engage in a “balancing of the equitable factors as to the scope of remedial relief, not as to underlying merits.” According to Sauer, the proper procedure would be for multiple lower courts to litigate the cases before the case is ultimately brought to the Supreme Court which “decides on the merits in a nationwide binding precedent.”
A short while later, Kagan again called out Sauer for only challenging the nationwide injunction instead of arguing the merits of the case regarding Trump’s order. Kagan asserted that, should the government prevail on the injunction issue, there would be no reason for it to take the substantive question to the Supreme Court, the only forum where the measure could be dealt a fatal blow.
“You’re losing a bunch of cases — this guy over here, this woman over here — they’ll have to be treated as citizens, but nobody else will. Why would you ever take this case to us [on the merits]?” she asked. “I’m suggesting that, in a case where the government is losing constantly, there’s nobody else who is going to appeal, they’re winning — it’s up to you [the government] to decide to take this case to us. If I were in your shoes, there’s no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts and what’s supposed to happen to prevent that?”
She ultimately concluded that every person who brought a challenge in this case would win their individual case, but emphasized that “the ones who can’t afford to go to court, they’re the ones who are going to lose.” Essentially, even if the government lost every single case filed against the birthright order, the administration would still be able to enforce the seemingly unlawful order against anyone who failed to personally file a legal challenge.
Sauer responded that class actions would be a more appropriate route than nationwide injunctions.
Jackson continued to push back on Sauer’s assertion, saying that class action suits and universal injunctions do “conceptually different” things, with the former giving class members an enforceable right while the latter merely allows individuals to benefit from the government being ordered to stop enforcing an unlawful measure.
Similar to Kagan, Jackson also pressed Sauer on the mechanisms that would be available for the public to fight against executive orders that courts have repeatedly found unlawful.
“Your arguments seem to turn our justice system — in my view, at least — into a ‘catch me if you can’ regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights,” she said. “Let’s assume for the purpose of this that you are wrong about the merits, that the government is not allowed to do this under the Constitution. Yet, it seems to me that your argument is, ‘we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit and hire a lawyer.’ I don’t understand how that is remotely consistent with the rule of law.”
