Supreme Court Justice Elena Kagan will be heard, thank you. So will Amy Coney Barrett. On Thursday, Justice Kagan went “Dark Robe” in oral argument regarding the most dictatorial action proposed by the Trump administration – the executive order ending birthright citizenship under the 14th Amendment. Up against the hapless U.S. Solicitor General D. John Sauer, Kagan was indefatigable while hammering the weaknesses in the administration’s strategy. She also went next level in highlighting the broader implications of the case for both judicial authority and – most critically – individual rights.
To set the stage, this is your president’s view on the 14th Amendment’s most unequivocal clause, as he tweeted:
“Birthright Citizenship is about the babies of slaves” and not about “people pouring into our Country from all over South America, and the rest of the World.”
Yes, except the people who drafted the 14th Amendment actually knew how to write; “This is for children of the freed slaves… ” And chose not to. Instead, they left us with this precious gift:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
You will note the word “All” in a clause left wanting any mention of slaves or children thereof. Again, they knew how to speak to what they wanted. The only caveat is the “Subject to jurisdiction thereof…” and this matter comes up in the context in which the United States is most certainly exercising its jurisdiction – one could say most powerfully.
Kagan went off as documented by Rawstory:
“I mean, that’s a lot of words and I don’t have an answer for if one thinks — and, you know, look. There are all kinds of abuses of nationwide injunctions. But I think that the question that this case presents is that if one thinks that, it’s quite clear that the [executive order] is illegal, how does one get to that result? In what time frame on your set of rules without the possibility of a nationwide injunction?”
Yeah. Pro-tip from a reformed lawyer: If your oral argument summons up a reference to you speaking “a lot of words,” use fewer words and sit down. It isn’t going well. She later noted:
“I’m suggesting that in a case in which the government is losing constantly… It’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case.“
Well, if the Justice suggests that she has too much acumen and pride to ever bring your case, you can bet that it’s not because it’s such a slam dunk that it would’ve otherwise settled. Again, go pound a few beers instead, it’ll do your client far more good. I am not sure I’ve ever heard a judge taunt an attorney for even broaching a topic in court.
Meanwhile, Sauer was mid-sentence talking about nationwide injunctions, when Justice Amy Coney Barrett interrupted.
“Are you really going to answer Justice Kagan by saying, there’s no way to do this expeditiously?”
To be entirely fair to Sauer, it’s not like it was his idea to challenge birthright citizenship, nor does one even presume that he thinks he’s right. Now consider Kagan’s comments in that context. Normally, judges/justices understand that attorneys play the hand they have. She didn’t care, implying that Sauer should’ve refused the president’s demand to bring the case.
Twitter (Or “X”) noticed:
“In the Trump administration’s SCOTUS hearing where they are trying to overturn Birthright Citizenship, Supreme Court Justice Elena Kagan calls out and criticizes the Trump administration for not respecting court decisions. We are a nation of laws! Don’t forget that!”
BREAKING: In the Trump administration's SCOTUS hearing where they are trying to overturn Birthright Citizenship, Supreme Court Justice Elena Kagan calls out and criticizes the Trump administration for not respecting court decisions.
We are a nation of laws! Don’t forget that! pic.twitter.com/lixbfqzcVh
— Ed Krassenstein (@EdKrassen) May 15, 2025
Meanwhile, @mmpadellan , wrote to his 1.5 million followers, “Justice Kagan is ripping this dude Sauer to shreds in this Birthright Citizenship case, hoo boy!”
Yes, well – this one isn’t a legal MENSA test. Read the clause again. Only the Trump administration would try this sh*t.
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Chilling amount of stupidity there methinks.
Not to mention that the whole issue of “birthright citizenship” was locked in by a previous SCOTUS decision in the 19th century. In 1898, the case of United States vs Wong Kim Ark decided the issue once and for all and the morons in the Drumpf Administration need to drop the whole fight.
From the opening paragraph at Wiki: “United States v. Wong Kim Ark, 169 U.S. 649 (1898), is a landmark decision of the U.S. Supreme Court which held that “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China”, automatically became a U.S. citizen at birth. Wong Kim Ark was the first Supreme Court case to decide on the status of children born in the United States to alien parents. This decision established an important precedent in its interpretation of the Citizenship Clause of the Fourteenth Amendment to the Constitution.”
The background was that ” Wong Kim Ark, who was born in San Francisco in 1873, had been denied re-entry to the United States after a trip abroad, under the Chinese Exclusion Act, a law banning virtually all Chinese immigration and prohibiting Chinese immigrants from becoming naturalized U.S. citizens. He challenged the government’s refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the Citizenship Clause should be interpreted “in light of the common law”. The case highlighted disagreements over the precise meaning of one phrase in the Citizenship Clause—namely, the provision that a person born in the United States who is “subject to the jurisdiction thereof” acquires automatic citizenship.”
And the majority ruled that, although a LIMITED number of exceptions to gaining “automatic” citizenship applied, being born on US soil to “alien parents” was NOT an exception.
Good point. Of course Trump will continue to wipe his ass with our laws until the LAW stops him. If not, then our votes will always elect him, or who he appoints. When is the last time Putin lost an ‘election’? Hard to lose when the opposition is either dead or in a gulag.
I didn’t know of that case. It isn’t one that gets studied in law school.
I do know this. If I read; “subject to the jurisdiction thereof” – I hear a clause that excludes kids born to diplomats and visiting dignitaries so that another country’s government officials cannot come visit the U.S. under diplomatic status and have their kid be an American.
But what do I know?