179. Whither the Birthright Citizenship Cases?

Notwithstanding the Court's June ruling, President Trump's birthright citizenship executive order remains blocked—a broader lesson on the risks of paying attention to only one part of the news cycle.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.

Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, I hope you’ll consider becoming one—and upgrading to a paid subscription if your circumstances permit:

There is, alas, plenty of Supreme Court-related news, including the (now five) pending emergency applications from the Trump administration, all of which I’ll briefly cover below. But I wanted to use this week’s “Long Read” to tell a slightly different story—about cases that aren’t making headlines, for instance, the ongoing litigation challenging President Trump’s executive order purporting to limit birthright citizenship. That order remains on hold—thanks to a series of rulings by lower courts after the Supreme Court’s 6-3 ruling on June 27. These lower-court rulings have flown under the radar—at least largely because the government has not sought emergency relief from the courts of appeals or the Supreme Court, nor has it refused to comply with them. For now, it is “taking the L.”

That’s an important story unto itself—not just in the birthright citizenship cases, but more generally. For all of the attention that is (understandably) being paid to the unprecedented number of cases the Trump administration is rushing to the Supreme Court (we’re up to 28), and to the Court’s (troubling) behavior in those cases, they represent only a small subset of the broader universe of legal challenges to Trump administration behavior. In the majority of cases in which the government is losing in the lower courts, it is (1) not seeking emergency or expedited intervention from above; and (2) otherwise complying with the adverse rulings while the cases move (very slowly) ahead.

Because this reality doesn’t make for quite as attractive headlines, it’s one to which too many folks are largely oblivious. That’s a problem worth fixing—not only because it’s important to tell both sides of the litigation story, but because including these cases paints a more complicated (and, in my view, far less nihilistic) picture of the role of the courts—and of the law, more generally—as a check on the Trump administration. Hence, today’s post.

But first, the (more conventional) news.

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On the Docket

There were only two orders out of the full Court last week, and neither came in a Trump-related case. On Tuesday, over no public dissents, the Court denied a stay of execution to Florida death-row inmate David Pittman, who was executed Wednesday evening. And on Friday, the full Court granted a stay of the impending state-court trial in the New Jersey Transit case—in which the Court has already granted certiorari to decide whether New Jersey Transit has sovereign immunity. The unsigned order came with at least a bit of an explanation—with the justices emphasizing that

the pending damages trial before the Supreme Court of the State of New York would be barred if New Jersey Transit Corporation were entitled to sovereign immunity from suit. Respondents, on the other hand, identify no tangible irreparable harm they would face if the trial were delayed until after this Court decides the pending case.

The extent to which the justices continue to publicly rest upon traditional equities balancing in non-Trump-related applications is quite revealing—all the more so in light of the apparent disappearance of comparable analysis from the Trump cases.¹

The only other news out of the Court last week was the release of an amended argument calendar for the November session—to accommodate the late-added argument in the tariffs cases, which is now set for Wednesday, November 5. Hamm v. Smith, an important Alabama death penalty case in which the state is the petitioner, got bumped—presumably to December.

To my mind, the real news out of the Court last week was the continuing accretion of emergency applications from the Trump administration—which filed three new applications, on top of the two that are already pending (I wrote about the administrative stays entered by Chief Justice Roberts in those first two cases for last Thursday’s bonus issue). Even by the unprecedented standards of the last eight months, having five applications from the government pending at the same time is, for lack of a better word, insane.

Just to briefly summarize all five, and their current posture:

1. Trump v. Slaughter (filed September 4; administrative stay entered by Chief Justice Roberts on September 8): Seeking a stay of lower-court rulings that had prevented the President from removing without cause the last Democratic member of the Federal Trade Commission.

2. Trump v. Global Health Council (filed September 8; administrative stay entered by Chief Justice Roberts on September 10): Seeking a stay of lower-court rulings that had prevented the President from engaging in “pocket rescissions” of significant sums of mandatory foreign aid appropriations.

3. Trump v. Cook (filed September 18; response due Thursday by 4 p.m. ET): Seeking a stay of lower-court rulings that had prevented the President from removing a member of the Federal Reserve Board of Governors based upon untested (and seemingly pretextual) claims of mortgage fraud. As I noted on Bluesky on Friday, the fact that Chief Justice Roberts ordered a response without issuing the “administrative” stay the government was also seeking (and that he did issue in the Slaughter case) seems to suggest that such relief is not forthcoming.

4. Trump v. Orr (filed September 19; no response requested yet): Seeking a stay of lower-court rulings that had blocked a State Department policy that would require all new U.S. passports to identify the holder by their biological sex at birth. (No, I don’t understand what the “emergency” is either.)

5. Noem v. National TPS Alliance (filed September 19; no response requested yet): The latest application in the case about “temporary protected status” for approximately 300,000 Venezuelan migrants—seeking a stay of lower-court rulings that had granted summary judgment on one of the challenges to Secretary Noem’s abrupt revocation of TPS earlier this year (the district court rested on a different ground than the one that had formed the basis for the preliminary injunction that the Supreme Court stayed, without explanation, back in May.)

It seems likely that we’ll get rulings in Slaughter and Global Health Council this week. I suspect that we won’t hear anything about the other three (besides requests for responses in the last two) until next week at the earliest. And keep in mind that next Monday is the justices’ “Long Conference”—their first meeting in person since they rose for their summer recess, when they have plenty of other business to conduct. Needless to say, it will be yet another busy and chaotic week at the Court—even if no other late-breaking applications make an appearance. And given how things are going, that seems … unlikely.

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The One First “Long Read”: What if Adverse Lower-Court Rulings Fall in the Forest and No One Sees?

One of the hardest things about trying to pay attention to all of the relevant legal developments these days is just how many of them there are. Whether or not it’s possible for any outlet to comprehensively cover the litigation against the Trump administration, it stands to reason that the headlines are going to gravitate toward (1) adverse rulings that the administration makes a lot of noise about appealing and seeking to freeze pending appeal; and/or (2) rulings with which the administration at least appears to not be complying.

The problem is that those cases are in the distinct minority. Even with its preposterous pace of emergency applications in the Supreme Court (28 in less than eight months), the Trump administration is not seeking emergency relief in a substantial majority of the cases in which it is losing in the lower courts. And although there are certainly some high-profile examples of apparent non-compliance (and other shady litigation behavior), those, too, are the exceptions that prove the rule.

A good (series of) cases in point are the birthright citizenship cases. Recall that, back on June 27, the Supreme Court partially stayed three different “universal” injunctions against President Trump’s executive order purporting to limit the classes of children who would be entitled to citizenship by dint of being born in the United States. The Supreme Court’s ruling left the injunctions against the order in place for the plaintiffs in those three cases—but nobody else. And so the question quickly became whether the order would ever go into effect against the rest of those who would be affected.

At least thus far, the short answer is “no.” Here’s a quick summary of what’s happened since in each of the three cases that were consolidated in the Court’s June 27 ruling—and a fourth case that was not part of the CASA ruling:

1. CASA, Inc. v. Trump (D. Md. / Fourth Circuit): After the Fourth Circuit returned the case to the district court, on August 7, Judge Boardman granted the plaintiffs’ motion to certify a nationwide class action on behalf of any child whose citizenship would be affected by the executive order and entered a preliminary injunction on behalf of that class. Although such an order could have been subject to an immediate interlocutory appeal to the Fourth Circuit (an appeal during which the government could also have sought a stay),² the government has not appealed either the preliminary injunction or the class certification decision. Instead, it is (slowly) moving forward in the district court; its answer to the plaintiffs’ original complaint is due, as it turns out, today.

2. Washington v. Trump (W.D. Wash. / Ninth Circuit): On July 23, a divided panel of the Ninth Circuit reaffirmed the universal injunction entered by the district court against the birthright citizenship executive order—holding that, consistent with Justice Barrett’s majority opinion in CASA, a universal (that is, non-plaintiff-specific) injunction was necessary to provide “complete relief” to the state plaintiffs. Judge Bumatay dissented on the ground that he did not believe the state plaintiffs had standing. The government did not seek rehearing en banc from the full Ninth Circuit (the time for doing so has expired); nor has it otherwise sought a stay of the ruling, the mandate from which issued on September 15. The time within which to either file a petition for certiorari in the Supreme Court or to seek an extension of time for doing so is still running (it will expire on October 21). But even if the government does eventually seek Supreme Court review (something Solicitor General Sauer verbally committed to during the CASA oral argument), it will not have done so with any alacrity.

3. New Jersey v. Trump (D. Mass. / First Circuit): Two days after the Ninth Circuit ruled in the Washington case, the district court in the New Jersey case (filed in Boston) reached the same conclusion—i.e., that a “universal” injunction was necessary to provide the plaintiffs with “complete” relief. It therefore reaffirmed its nationwide preliminary injunction against the executive order on July 25. As in the Maryland case, the government has neither appealed Judge Sorokin’s order nor has it sought a stay. Instead, it is also now (slowly) defending against the lawsuit on the merits—with its answer currently due one month from today (October 22).

4. Barbara v. Trump (D.N.H. / First Circuit): At least some of the government’s behavior in the three cases that went to the Supreme Court might be explained by the posture of a fourth case—one filed in the District of New Hampshire. On July 10 (so, before any of the post-Supreme Court rulings on remand in the other three cases), the district court in Barbara v. Trump certified a “provisional” nationwide class of everyone to whom the birthright citizenship executive order would apply and granted preliminary injunctive relief to the “provisional” class.³ Perhaps expecting the government to challenge both rulings, Judge Laplante stayed his order for seven days to allow the government time to appeal (and, presumably, to seek a stay pending appeal). But the government did not appeal right away or seek a stay. Instead, it waited until September 5—three days before the 60-day deadline for appealing would have expired—to appeal Judge Laplante’s rulings to the First Circuit. And it has yet to file anything in the First Circuit seeking either (1) a stay of Judge Laplante’s rulings; or (2) even expedited review thereof. It’s appealing, but begrudgingly, at best.

In other words, there are now four different injunctions in place blocking the birthright citizenship executive order from going into effect—two universal injunctions (emanating from the Western District of Washington and the District of Massachusetts); and two injunctions on behalf of nationwide classes of everyone who would potentially be affected by the order (emanating from the District of New Hampshire and the District of Maryland). The only one of those cases in which an appeal is actively proceeding is the New Hampshire case, in which it is proceeding … slowly.

I realize that that’s a lot of litigation procedure to swallow, but it seems to me that there are four takeaways worth emphasizing:

First, these cases are not outliers. The obvious explanation for the government’s tortoise-like behavior is that it believes it is going to lose these cases (which is almost certainly true), but that’s also true in lots of other challenges to other Trump administration behavior. To take just one visible set of examples, consider the district court rulings blocking four of President Trump’s executive orders targeting specific law firms. Several of those rulings are now being appealed, but at a similar pace to the appeal in Barbara—the government filed close to the deadline; it didn’t seek any kind of stay of the district court ruling; and it hasn’t sought any expedition in the court of appeals. Especially given how successful the government has been at obtaining emergency relief from the Supreme Court, and at obtaining at least expedited review from courts of appeals (and the Supreme Court), its decision to seek neither should be read for exactly what it suggests—the government is going through the motions, but is otherwise accepting the inevitability of losing these cases. Were it more confident on the merits, there’d be much more of a reason to move with more dispatch.

Second, we’re not paying enough attention to these cases. I don’t know how many of those reading this piece were aware of the machinations in each of the four birthright citizenship cases discussed above, but I’ll confess that even I had to look up where things stood in two of them—and I suspect I’m at the extreme end of the spectrum when it comes to paying attention to these developments. Yes, appeals on the 57th day of a 60-day period without a request for a stay aren’t as newsworthy as a lot of what’s going on in the world (even in the litigation world). But that doesn’t mean it’s unimportant that the government is behaving this way. To the contrary, it underscores that the narratives we’re seeing in the media and elsewhere are skewed by the squeaky wheels. That may be inevitable, but that doesn’t mean we should condone it. Instead, even if we’re not following every jot and tittle in the cases in which the government isn’t acting like its hair is on fire, we should appreciate that (1) those cases exist; and (2) there are a lot of them. That matters for calibrating narratives about how effective the courts have been as a check on the Trump administration (very, even accounting for the Supreme Court’s one-sided behavior to the contrary); for pushing back against hysterical claims from the right about allegedly widespread misbehavior by lower-court judges (Make Denominators Great Again); and, more broadly, for thinking about what “law” is in 2025.

Third, folks might recall the loud and sharp debate following on the heels of the Supreme Court’s ruling in CASA over just how much (or how little) of an impact that decision would have on the ability to challenge lawless (and allegedly lawless) behavior by the Trump administration. As I wrote at the time, the answer was always going to depend upon what happened both on remand in those three cases and elsewhere—and on how viable other means of seeking nationwide relief would be in challenges to Trump administration policies. It’s still early, but at least so far, the returns have largely borne out the views of those who did not think that CASA would be a cataclysm. To be clear, that doesn’t mean CASA was rightly decided (or even rightly framed, as Professor Jack Goldsmith has explained). And the Court may yet impose tighter limits on (1) nationwide class actions; (2) state standing; (3) what plaintiffs must show to demonstrate that a universal injunction is necessary to obtain “complete relief”; or (4) nationwide vacatur of rules under the Administrative Procedure Act—any of which will necessarily affect the ability of plaintiffs to bring nationwide challenges to federal policies. But at least for now, CASA’s effects have been decidedly modest—and felt most perhaps by lawyers, who have had to reconfigure many of the lawsuits against the Trump administration.

Fourth, and related, the events of the past three months (and, indeed, the past week) drive home one last point that ought to be obvious, but that seems worth saying out loud anyway: The ruling in CASA did absolutely nothing to take pressure off of the Supreme Court’s “emergency” docket. Since the June 27 ruling, the Trump administration has continued to file applications for emergency relief at just about the same clip as it was filing before that ruling; if anything, the average has gone up. If part of the Supreme Court’s goal in CASA was to reduce the volume of district court rulings that would produce effects justifying immediate consideration of emergency applications, well, it failed.

More broadly, this last point suggests, as I’ve been arguing for quite some time, that efforts to defend the proliferation of Supreme Court interventions on the emergency docket as a response to the rise of universal injunctions in the lower courts are confusing causation with correlation. The Supreme Court is intervening in these cases because it can, and because it wants to—regardless of the scope of the relief the district court entered (the removal-without-cause cases—where the dispute is over whether a single person can serve in a single position—are good examples). Were there a more direct relationship between universal injunctions and the growth of the emergency side of the shadow docket, CASA should’ve had a much more dramatic effect.⁴

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SCOTUS Trivia:
Stays Directed to Federal Courts vs. State Courts

I’ve written before about the revealing difference in verbiage when the Supreme Court remands a case to a lower federal court versus a state court—how federal courts are instructed to conduct “further proceedings consistent with this opinion,” and how state courts are instructed to conduct “further proceedings not inconsistent with this opinion.”

As my friend and appellate lawyer Sean Marotta flagged on Bluesky, that difference also showed up in the stay the Court issued in the New Jersey Transit case last week—a rare grant of emergency relief against state court proceedings. The Court’s brief order specified that the stay would persist “pending the issuance of the mandate of this Court.” That’s in contrast to stays of rulings in lower federal courts, which are usually left in place “pending the sending down of the judgment of this Court.”

This distinction reflects a very nerdy but potentially significant distinction in how the Court returns cases to lower courts. For cases coming from the lower federal courts, the Court does not usually issue a mandate; under Rule 45 of the Court’s rules, it merely sends its judgment (and, where applicable, opinion respecting the judgment) “down” to the court of appeals and/or district court. But for cases coming from state courts, the Court does formally issue a mandate—reflecting the (fascinating and, every so often, significant) reality that, although the Supreme Court has general supervisory authority over the lower federal courts, its powers over state courts are both narrower and more specific.

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1. The order doesn’t address the respondents’ strong argument that New Jersey Transit slept on its rights—and declined to seek emergency relief until the eleventh hour.

2. Federal courts of appeals must hear interlocutory appeals of district court orders granting or denying preliminary injunctions; and they may hear interlocutory appeals of district court orders granting or denying class certification.

3. A “provisional” class certification is one that is made for the purposes of granting interim (i.e., preliminary) injunctive relief, but that is not necessarily certification for purposes of the entire litigation.

4. To be sure, the broader the relief, the more the Court may feel impelled to step in. But ironically, that understanding makes sense if and only if the justices really are thinking not just about the merits of the government’s behavior, but about the scope of the harms resulting from both the lower-court rulings and a decision freezing them. (That is, the more folks against whom the government can’t enforce an enjoined policy, the more “harm” the government is suffering.) On that view, the “equities” are still driving the Court’s willingness to intervene, even if/as they’ve disappeared from the substance of the intervention.