Elena Kagan Shows Absolutely No Mercy To Trump's Lawyer In Birthright Citizenship Case

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Judge Elena Kagan asks Solicitor General D. John Sauer during oral arguments in a key case involving birthright citizenship.

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00:00So, General, on this question of expedition, I mean, it sort of depends on the government's own actions in a case like this one,

00:09where one can expect that there is not going to be a great deal of disagreement among the lower courts.

00:15I mean, let's assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue,

00:22and that you never take this question to us.

00:25I mean, I noticed that you didn't take the substantive question to us.

00:29You only took the nationwide injunction question to us.

00:33I mean, why would you take the substantive question to us?

00:38You're losing a bunch of cases.

00:40This guy over here, this woman over here, you know, they'll have to be treated as citizens, but nobody else will.

00:46Why would you ever take this case to us?

00:48Well, in this particular case, we have deliberately not presented the merits to this court on the question of the scope of remedies,

00:56because, of course, that makes it a clean vehicle where the court doesn't have to look at the past.

01:00You're ignoring the import of my question.

01:02I'm suggesting that in a case in which the government is losing constantly, there's nobody else who's going to appeal.

01:11Well, they're winning.

01:13It's up to you to decide whether to take this case to us.

01:16If I were in your shoes, there is no way I'd approach the Supreme Court with this case.

01:21So you just keep on losing in the lower courts.

01:25And what's supposed to happen to prevent that?

01:27Again, I respectfully disagree with that forecast of the merits.

01:30But in response to the question, what I would say is we have an adversarial system.

01:35And if the government is not, for example, not respecting circuit precedent on the court's hypothetical in the Second Circuit,

01:39someone injured in the Second Circuit could take the case up.

01:42And they could say, look, the government is violating circuit precedent on the hypothetical multiple circuits.

01:47That's the case we're going to take?

01:49Take somebody who says, you know, after we've said that this all has to be done one by one by one,

01:58then we're going to take a case from somebody who objects to proceeding one by one by one?

02:06I'm not sure I understand the question.

02:07I understood the hypothetical.

02:08If you win this challenge and say there is no nationwide injunction and it all has to be through individual cases,

02:16then I can't see how an individual who is not, you know, being treated equivalently to the individual who brought the case

02:24would have any ability to bring the substantive question to us.

02:28They would bring a lawsuit in the federal district courts against the government for an injunction protecting them.

02:35And if the government wasn't respecting, you know, on the hypothetical circuit precedent...

02:37Yeah, and then they win.

02:39And again, I mean, you need somebody to lose.

02:42But nobody's going to lose in this case.

02:44It's just, you're going to have, like, individual by individual by individual,

02:51and all of those individuals are going to win.

02:53And the ones who can't afford to go to court, they're the ones who are going to lose.

02:58The tools that are provided to address hypotheticals like this, again, I...

03:02This is not a hypothetical. This is happening out there, right?

03:05Every court has ruled against you.

03:07We've only had snap judgments on the merits.

03:09Obviously, we're fully briefing the merits in the courts of appeals,

03:12and our arguments are compelling more fundamentally in response to the question.

03:17I'm suggesting to you, like, the real brunt of my question is, in a case like this,

03:22the government has no incentive to bring this case to the Supreme Court

03:25because it's not really losing anything.

03:27It's losing a lot of individual cases, which still allow it to enforce its CEO

03:32against the vast majority of people to whom it applies.

03:35And, again, Rule 23 provides an avenue to present, to address those very concerns.

03:42Justice Gorsuch.

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