Ketanji Brown Jackson Rails Against The Trump Admin During Birthright Citizenship Oral Arguments

Forbes Breaking News

During Thursday's Supreme Court oral arguments, Justice Ketanji Brown Jackson questioned an attorney about the Trump Administration's actions during litigation over cases challenging their actions.

Transcript

00:00Justice Jackson?

00:01So I guess I'm kind of hung up on the posture in which we find ourselves looking at these issues.

00:08You know, Justice Alito, I think, focused on this a little bit, you know,

00:12when he says that the district court makes this initial determination, it turns out to be wrong.

00:19The remedy, I thought, was to appeal.

00:22And I guess for me the question is whether and under what circumstances the government keeps on doing the thing that the court has found unlawful

00:35while the litigation is proceeding to determine whether or not the government's activity violates the law.

00:43We're sort of in an interim posture.

00:45Many of your arguments, and I appreciate them, are kind of couched in, you know,

00:51the state is going to need complete relief for their injury, and that's true definitely as a final matter.

00:58But here we are at the beginning of this litigation.

01:02No one has determined whether or not the government's conduct is actually unlawful.

01:07We have a district court, several district courts, and now courts of appeals that say it is,

01:13and so, as an interim matter, we are saying the government has to stop doing it while we litigate the issue of the unlawfulness.

01:22To me, that kind of puts the whole thing in a different frame.

01:26It's sort of like, why isn't the question in this posture, in this circumstance,

01:32can the government or has the government shown that it is going to suffer some sort of harm

01:39from being made to completely stop this activity while we're litigating the lawfulness of the conduct?

01:45I don't understand.

01:46And then you say, yes, we are going to suffer harm.

01:49This is the balance of the equities that are, you know, part of the PI and the state showing,

01:54but I just don't understand why that's not the focus here.

01:58And I don't know what the—and I apologize because I didn't get a chance to ask Mr. Sauer this,

02:02and maybe he can address this on his rebuttal, but, you know, what problem is the government facing

02:10as a harm matter from being completely told it has to stop doing this while we determine,

02:18we, the court system, determine whether or not its conduct is lawful?

02:21So we—I mean, we included this in our application.

02:24We do think this case is quite unique in that I do think it's hard for the government to show

02:28in this particular case that it needs to be able to act contrary to this court's settled precedent.

02:33That's obviously come up in a couple of questions today.

02:35It's something if I realize the elephant in the room.

02:37I've often been asked to assume that the merits are put to the side,

02:41and I'm fine assuming that for those questions.

02:43But to your point, you're not wrong.

02:45It is quite striking, obviously, that it's not just that district courts are saying,

02:50this looks like it might be unlawful.

02:52They're saying, Wong Kim Ark settled this exact issue 127 years ago.

02:56This court has reaffirmed it since.

02:58Over a century of executive practice has built on that,

03:01and Congress has codified that directly into law.

03:03So I do think it's a particularly unusual case for the government to be saying

03:07that it has been quite so harmed and needs this kind of relief.

03:10But at the end of the day, I'm happy to join issue on when relief may or may not be appropriate,

03:14and I just think we're clearly on the other side.

03:15But you're saying that at least in some circumstances from your perspective,

03:19in order to even decide whether or not you are entitled to an interim complete injunction,

03:26the court's now going to have to peek at the merits while the merits are being litigated.

03:32I think the court always has to peek at the merits in deciding whether the party itself

03:35should be getting relief from its harms, including complete relief as even the United States accepts.

03:40So those are all four of the winter factors.

03:42You have to figure out what the irreparable harm is that you're trying to deal with.

03:45You have to figure out if we have a sufficient merits showing in order to eliminate that irreparable harm.

03:50And depending on the strength of the merits showing,

03:52you're also looking at winter's factors three and four.

03:54So this court has given four winter factors that I think are quite useful in most cases.

03:58I took my friends on the other side to be saying,

04:00well, beyond the winter factors, there's this bright line rule from Article 3 or the history of equity

04:05that just says it can never get to this point.

04:07I obviously disagree a bit with them on the reading of that history,

04:10but I just think it has no bearing on the case that the states bring to this court here.

04:14Thank you, Council.

Category

Transcript

Recommended