Advisory Opinions broadcast: President Donald Trump and birthright citizenship

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It was a relatively quiet week at the relist window – just one grant, one denial, one apparent hold, and one new relist. Specifically, the justices granted review in Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, a Title VII (employment discrimination) case asking whether a defendant who failed to plead an affirmative defense in its answer may nonetheless assert that defense as the basis for summary judgment, an issue that has divided the circuits. On the other end of the ledger, the court denied certiorari in Skinner v. Louisiana, drawing a dissent from Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson. They argued that James Skinner – convicted of the same murder as co-defendant Michael Wearry, on the basis of the same withheld evidence the court had already found constitutionally fatal in Wearry v. Cain – is entitled to the same relief the court gave Wearry, and that the Louisiana courts’ one-sentence dismissal of his Brady claim as “distinguishable enough” borders on open defiance of the court’s precedents. The court hasn’t taken further action on last week’s relist in Saldano v. Texas, involving a claim that petitioner Victor Saldaño can’t be executed under the court’s precedent in Atkins v. Virginia because of intellectual disability. My best guess (and it is only that) is that the justices are holding the case pending the outcome of Hamm v. Smith, an Atkins case that was argued in December, and which prompted commentary that “Atkins is on … precarious footing.” Stay tuned – Hamm may have more to say about that.

Yesterday’s argument in Jules v Andre Balazs Properties showed a bench with some uncertainty about the jurisdiction of federal courts to enforce an arbitration award.

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

The Justice Department will soon be back before the Supreme Court defending President Donald Trump’s birthright citizenship policy. The Trump administration has won most of the lawsuits over immigration matters that have reached the court, as well as last summer’s face-off touching on birthright citizenship. But unlike the citizenship policy’s first trip to the court, which focused on federal judges’ power to block presidential directives nationwide, Trump v. Barbara, scheduled for argument on April 1, directly addresses the legality of Trump’s executive order limiting who is treated as a U.S. citizen at birth. And the administration’s string of victories on immigration doesn’t necessarily smooth the path for success this time around because Barbara isn’t about immigration law at all, but it is about citizenship law. Historically, the court has been much less willing to let the president do what he likes when it comes to setting the terms of citizenship.

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

Younge v. Fulton Judicial Circuit District Attorney’s Office was the lone case in which the court granted review on Monday. The announcement came on a list of orders from the justices’ private conference on Friday, March 27.

The government’s top Supreme Court lawyer will likely face vigorous questioning from the justices on Wednesday in Trump v. Barbara, the birthright-citizenship case.

What follows are 20 sets of questions that we ourselves would love to ask Solicitor General D. John Sauer in some great moot court in the sky. (Here on planet Earth, Sauer has of course not invited us to moot him, though he did expressly respond to Akhil’s amicus brief at page 13 of his reply brief.) In a sequel column, we’ll list some of the hardest questions that might be posed to the appellate advocate on our side of the case, the ACLU’s Cecilia Wang, along with the best answers we think she can give.