Supreme Court Doesn't Have 5 Votes To Uphold Birthright Citizenship: Ex-AG

Newsweek

11 hours ago

Based on facts, either observed and verified firsthand by the reporter, or reported and verified from knowledgeable sources.
Former U.S. attorney general Alberto Gonzales during an interview on Sunday speculated that the Supreme Court ruled against nationwide injunctions in a landmark case as a compromise after failing to secure five votes on the issue of birthright citizenship.
Gonzales, who served in former President George W. Bush's administration, admitted that he had no basis for his speculation, but found it interesting that the court declined to rule ono the "substantive issue" of birthright citizenship put before the justices.
Why It Matters
President Donald Trump issued an executive order in February to end birthright citizenship, which is granted under the 14th Amendment of the U.S. Constitution and explicitly grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof."
Trump has argued that the amendment as been misinterpreted and that the federal government has the authority to restrict birthright citizenship through executive action.
However, the case of Trump v. CASA focused on whether judges have the authority to issue the nationwide, or universal, injunctions that blocked Trump's order from implementation. The administration has complained that federal judges have overreached by issuing orders that apply to all parties instead of only the aggrieved parties.
What To Know
The Supreme Court on Friday issued an opinion authored by Justice Amy Coney Barret that severely limited the scope and qualification for federal judges to issue nationwide injunctions and sidestepped making any ruling on the issue on the issue of birthright citizenship itself, instead pushing that decision back to October when the next session for the court commences.
Gonzalez, speaking with CNN's Fareed Zakaria at the Aspen Ideas Festival in Colorado on Sunday, speculated that the landmark ruling occurred as a compromise after the judges failed to come to any consensus over the substantive issue of birthright citizenship itself.
Chief Justice of the Supreme Court John Roberts (L), along with Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson (back) stand in the House of Representatives ahead of...
Chief Justice of the Supreme Court John Roberts (L), along with Associate Justices (L-R) Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson (back) stand in the House of Representatives ahead of US President Joe Biden's third State of the Union address to a joint session of Congress in the House Chamber of the US Capitol in Washington, DC, on March 7, 2024. INSET: Former Attorney General Alberto Gonzales speaks about Attorney General William Barr and the Mueller Report during the American Bar Association's (ABA) Young Lawyers Division 2019 Spring Conference, on May 3, 2019 in Washington, DC. More
Shawn Thew/POOL/AFP via Getty Images //"It is possible that the court took this case to decide the substantive issue," Gonzales said. "As they negotiate what the opinion should read, they discover they don't have five votes either way, and so as a result of that, they decide to punt the substantive issue and deal only with it with a nationwide injunction."
When asked if that meant he believed the court was deadlocked on the issue of birthright citizenship, Gonzales said, "It's pretty obvious. Well, it seems obvious to me."
"It seems pretty obvious to me, and I think that there are at least five votes to affirm that, and perhaps the only way to get this opinion out was to carve away the substantive issue and deal only with this issue," he said, referring to nationwide injunctions.
Former U.S. attorney general Sally Yates, who served during former President Barack Obama's administration, chimed in to say that "if we don't have five votes on this [issue], we're all in really big trouble."
This would mean that the court has at least one justice who is unable to commit to either upholding or rejecting birthright citizenship, leaving the other justices unable to secure a majority opinion and rule on the issue. As many as four justices could have otherwise sided with either position on the issue.
The idea that the justices make compromises on cases in order to advance certain positions is one that has been widely discussed, even as the justices try to dissuade any suggestion of dealmaking.
In the book Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences, CNN's Chief Supreme Court analyst Joan Biskupic discussed how the Chief Justice John Roberts and Justice Anthony Kennedy had worked together to advance cases that created offsetting opinions on the issue of gay rights.
Roberts joined Kennedy in saying that a gay couple in Arkansas could not be prevented from being named on their baby's birth certificate (the landmark Obergefell v. Hodges), while Kennedy would support bringing a case about a cake store refusing to make a wedding cake for a gay couple before the court.
Biskupic wrote, in part: "In many instances, law clerks know about a deal struck between justices. But in others, only the two justices involved truly know. Sometimes various chambers have dueling accounts of what happened, or individual justices remain baffled about why a colleague voted the way he or she did in the end."
In a rare insight into the chief justice's thinking, Roberts spoke over the weekend at a judicial conference in conversation with the chief justice of the 4th Circuit Court of Appeals following the ruling in Trump v. CASA, specifically about criticism the justices face after publishing and announcing their rulings.
"It would be good if people appreciated it's not the judges' fault that a correct interpretation of the law meant that, no, you don't get to do this," Roberts said, adding, "You'd like it to be informed criticism, but it's usually not. They're naturally focusing on the bottom line: who won and who lost. You need to appreciate that that's just the nature of what you do."
What People Are Saying
President Donald Trump wrote on Truth Social, in part: "GIANT WIN in the United States Supreme Court! Even the Birthright Citizenship Hoax has been, indirectly, hit hard. It had to do with the babies of slaves (same year!), not the SCAMMING of our Immigration process. Congratulations to Attorney General Pam Bondi, Solicitor General John Sauer, and the entire DOJ."
Professor Samuel Bray, in a previous statement sent to Newsweek: "Given that the birthright-citizenship executive order is unconstitutional, I expect courts will grant those preliminary injunctions, and they will be affirmed on appeal. I do not expect the President's executive order on birthright citizenship will ever go into effect. Today's decision is a vindication and reassertion of the proper role of the federal courts in our constitutional system."
John Eastman of the Claremont Institute in a previous statement to Newsweek: "I am troubled by the outright falsehoods in the dissenting opinions regarding the claim that Trump's EO is 'patently unconstitutional' and a violation of long-settled law. My brief in the case points out a number of those falsities. And I'm sure we'll have more opportunity to do so as the case now progresses on the merits."
What Happens Next
The Supreme Court is expected to revisit the case of birthright citizenship in October when the next session of the court commences.