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Conservative Justices Seem Open to Siding with Trump; Supreme Court Hears Arguments on Whether Lower Court have Authority to Block Trump's Order to End Birthright Citizenship; Supreme Court Hearing Arguments on Birthright Citizenship. Aired 12-12:30p ET

Aired May 15, 2025 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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DANA BASH, CNN HOST, INSIDE POLITICS: Welcome to "Inside Politics". I'm Dana Bash in Washington, and we're following breaking news with massive consequences. Right now, the highest court in the land is hearing pivotal arguments involving President Trump's plan to end birthright citizenship.

But and this is important, it is a case that could go way beyond this one issue, whatever the court decides, could have major implications for federal courts and their ability to curtail multiple Trump policies being challenged as unconstitutional. Let's listen in.

KELSI CORKRAN, SUPREME COURT DIRECTOR AT THE INSTITUTE FOR CONSTITUTIONAL ADVOCACY & PROTECTION: Rule 71 explicitly contemplates that and says, if a non-party receives relief, they are entitled to enforce it. I point also to rule 65 the preliminary injunction rule, and in 2017, the rules committee considered a proposal from Professor Bray to amend the rule to prohibit relief to non-parties.

The committee rejected that proposal because it found that it ran afoul of the rules enabling committee. And then I'd end by pointing to rule 23 itself, which says nothing about it being a channeling mechanism. In Principi v Scarborough, this court said, you know, we don't treat the rules as excluding background equitable practices.

And here, rule 23 doesn't even contemplate preliminary relief. It's focused on permanent injunctive relief. And I think that's because, you know, as we've been discussing, it's very difficult to get class certification in time to have preliminary relief. So, you're doing putative class relief, which is the exact same thing as what's happening here.

BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: -- Why can't you get putative class relief in a preliminary injunction or TRO posture?

CORKRAN: You mean, sorry, in that --

KAVANAUGH: Get relief in a -- for a punitive class.

CORKRAN: Yeah.

KAVANAUGH: -- TRO --

CORKRAN: I certainly think you can. The court did that recently in AARP. My point is, when the court does that, it's relying on the equitable authority it has to enter that sort of relief, not on the rule 23 mechanism, because the class isn't binding until after certification, until after final judgment.

KAVANAUGH: If that mechanism is available, whether one way or another doesn't that solve a large part of the problem in a way that complies with the rules.

CORKRAN: Yeah. So --

KAVANAUGH: The problems with universal injunctions that have been identified by administrations of both parties go through rule 23 and do what's needed there, and people are bound then, so that's a wrinkle, but why doesn't that just solve the problem?

CORKRAN: Right. So, they're not going to be bound until after you get past class certification.

KAVANAUGH: I understand that.

CORKRAN: So, we're trying to -- and for that reason, I would go to Justice Alito's point earlier, that all you're doing is taking the non-party injunctions that are happening now outside of rule 23 and shoving them into rule 23 it doesn't address the forum selection concerns. It doesn't address the concerns about the emergency docket --

KAVANAUGH: -- complies with the rules. I mean that the law. We care about technicalities, and this may all be a technicality, but it seems to me, the technicality of rule 23 in the history of that provides 23(b)(2) provides a mechanism to do what's needed here in terms of getting relief to people.

And if you have PIs available for putative classes, that seems to solve the issue for preliminary relief and the timing issue as well.

CORKRAN: So (b)(2) provides for permanent injunctive relief. It does not provide for preliminary injunctive relief. Again, rule 23 does not purport to be the exclusive channeling mechanism. And as I said, the rules committee doesn't think it did so it would be this court kind of projecting its own policy decision to treat rule 23 that way and I would come back again to Justice Alito's concerns that is not actually addressing the court's emergency docket.

It's just now we're slapping a label of class certification on it. So, I would, and I'll make a second point on that, and then say what I think the better way of approaching the problem is, which is, I think the General Sauer and I are in agreement that the Venn diagram of cases that are appropriate for class certification and where injunctive relief, I think would be appropriate, is not coterminous. I think we could pursue successfully class certification here I heard

General Sauer to disagree, and I think it's because they're just different circumstances. If you look at the class certification requirements coming out --

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They were actually added to rule 23 in 1966, mostly address the expansion of class certification to include damages suits. That makes sense there, but those were never requirements prior to 1966.

NEIL GORSUCH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: Ms. Corkran, on the class certification point you've been developing, one response might be, and I just want to get your reaction to it, that by proceeding through the class mechanism, even a putative class mechanism, a court is making a preliminary assessment about who are the parties going to be before it, and issuing interim relief so that it preserves its jurisdiction to issue final relief with respect to those parties.

And that's very different the argument would go, than simply saying, everybody, everywhere, nationwide, universally, or perhaps cosmically, stands to benefit from this decision without ever having to suffer being bound by it --

CORKRAN: So, I would say that's an ahistorical approach. You haven't had that sort of --

GORSUCH: Well soon for the moment, that we read bills of peace, which I understand to be your best set of cases to be prototypical of what is now rule 23?

CORKRAN: Right. And so, the bills of peace and kind of going through, as Mr. Falkenburg was talking about, equity rule 48 and then 38, in none of those circumstances were we doing this ex-ante class certification determination. So, the modern class action device actually looks quite different than it was for representative suits historically. So, it would be putting on a historical constraint --

GORSUCH: I appreciate that argument, OK, but that, then our haggling over the history, which we have to do, I accept. But if bills of peace are understood again, except the premise to be predecessors of rule 23 then respond to the point that there is something fundamentally different about a preliminary injunction to a putative class you found is likely to be certified and likely to succeed on the merits in order to preserve that court's jurisdiction toward ultimate relief to those parties before it and that's categorically different than a universal injunction.

CORKRAN: Well, starting with the presumption that was different about the bills of peace is that they were binding. I think sometimes it's not clear always at the end, when they were getting to final judgment. I would go back to Grupo Mexicano to justice Barrett's point, although that, you know, that was the high-water mark of this equitable originalism, the way the court articulated the test, it focused on 1789. But the actual analysis in Grupo Mexicano focused on 1890 through 1942

and what the court found there is that there were numerous cases expressly rejecting the Mareva injunction, and that was confirmed in the 1970s when England adopted and said, no, we've never done this before.

We are in an entirely different world here one the cases that Justice Sotomayor laid out earlier all come from between 1890 and 1942.

And they suggest that non-party relief was provided for outside of the class action context. But the fact that we have, I think these studied scholars in this rigorous debate about what the bills of peace met, what the railroad cases met, I think, shows that this is very different in Grupo Mexicano.

And for the court to kind of delve into that and adopt the categorical rule that the government is suggesting, I think, is certainly an over correction. It's a hornet on Article Three, right. It calls into concern, APA, class action whole sort of things, I would suggest that the court instead focus on providing limiting principles within the confines of the -- factors of the --

KAVANAUGH: -- Is there a practical problem? So, I want to put aside the history, and I take your points on that and why you don't think rule 23 fits. I take your point on that. But if putative class actions and preliminary relief are an option, what then is the practical problem you see as distinct from the current regime?

CORKRAN: Well, if General Sauer is right in that there are class certification problems here, then in this particular case, you're going to have thousands of --

KAVANAUGH: OK. I think you would be arguing that the class should be certified here.

CORKRAN: Right. But I'm saying the government is --

KAVANAUGH: So more generally, taking it out of this case. If you could, do you see practical problems?

CORKRAN: Yeah, it would eliminate the associational standing trade cases, the other cases brought by the Chamber of Commerce, the NRA, other associations that aren't suitable for class certification. I think also the questions again --

KAVANAUGH: Can you explain that?

CORKRAN: Well, they wouldn't -- so we, if we were to seek certain oil be on behalf of our individual plaintiffs, you know, for the same reason that the government would have difficulty seeking class certification the state government, I think associations are not necessarily a good fit for that framework.

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Again, that's also not solving the court's problem. It's just channeling the problems through a different mechanism.

KAVANAUGH: I don't think that can be solved, just to be honest, but that's a separate issue from what the right rule is as to how things transpire in the district courts.

CORKRAN: Could I perhaps try to solve it in a different way? What I would suggest, you know, we spent some time trying to catalog the cases in which this court has approved universal injunctive relief in the cases in which it's rejected it, with the aim of giving the court maybe a suggestion how it might affirmatively articulate some limiting principles, such that you would not be getting the injunctions that the court thinks are inappropriate, but the ones that the court has approved would still be able to proceed again.

That's not the categorical rule that the government is suggesting. I think roughly what the court has been doing is saying that universal injunctions are appropriate only in facial challenges involving fundamental constitutional rights where there are real concerns about whether the legal and practical availability of relief to similarly situated parties who are also going to experience irreparable harm.

I think that maybe explains AARP, most recently, IRAP would fall into that category. Christopher, the New York eviction case would fall in that category. On the other side of the ledger, the court seems to disapprove quite a bit of nationwide injunctions involving discretionary benefits.

So that's some of the recent ones that you have undone or stayed. So, I think what the court could do is kind of identifying limiting principles that would provide guidance to the lower courts on when it's appropriate to issue these injunctions. A natural home for that is the public interest prong of the winter test, right.

If you're going to issue an injunction that's going to have an impact on other people's you need to be doing a really muscular public interest assessment before doing that. So that's what I would urge the --

ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: -- are you pushing back on the class certification idea? Because you're worried that there are cases where there will be no certification, but in which broad relief is, in fact appropriate.

CORKRAN: Yes.

KAGAN: So, the two categories don't line up, and if that's why you're pushing back, why are you worried about that? What are the cases you're worried won't line up properly in that way?

CORKRAN: I mean, the government has suggested it's going to argue that here again, I think the commonality so thinking about questions like common injury make a lot of sense when you're talking about class wide damages, less so when you're talking about a facial challenge to a constitutional violation.

So, I just, I think it's a bit of a mismatch. And again, it's not what rule 23 was ever intended to do, and it doesn't solve any of the court's policy problems. So, I think it's a, you know, it's a loss, lose, lose proposal that the government is offering. I'm a little concerned that I have focused a lot on my -- and haven't actually explained to the court why the injunction is necessary for complete relief here, but I don't want to pivot too quickly, but I want to make sure I address our primary argument as well.

KAGAN: Tell us why it's necessary for complete relief.

CORKRAN: Yeah. Thank you. For two reasons. The first is that a plaintiff specific injunction would not be administratively workable. I'll explain that in a second, but I want to note the second one is that even if it were workable, it would require the association members to identify and disclose to the government, an association that puts them at great risk of adverse consequences, detention or deportation, even if they're here lawfully.

And so, it's not complete relief to require the plaintiffs to make dangerous disclosures in order to claim the constitutional right. And then maybe I'll pivot back to the workability unless there are questions about that. So -- sorry.

JOHN ROBERTS, CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: Very briefly, and then we'll move on to the next stage of our questioning.

CORKRAN: So, the government's workability argument with respect to the individual plaintiffs, the private plaintiffs, is wholly tethered to its argument that the injunction should be limited to the 16 named plaintiffs. It has offered no argument for how it would administer. How state and local agencies could administer an injunction that was narrowed to the ASAP and CASA members.

So, I think that's probably the end of the road. Mr. Fog and -- made the point that the district -- they can always go back to the district court and ask for the injunction to be dissolved if they present some sort of workable proposal. They haven't, and I don't think they can. I don't want to talk for too long, but if anyone is interested, I'm happy to answer questions about why -- I think it's --

ROBERTS: -- Thank you though, council, Justice Thomas, Justice Alito.

SAMUEL ALITO, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: Should we decide or make up our minds on the underlying birthright citizenship question without briefing and argument and deliberation?

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CORKRAN: Yeah. I think that we would be very eager to do supplemental briefing on that. General Sauer noted that none of the parties had asked for cert before judgment. We couldn't, because we keep winning. I will ask right now for cert before --

ALITO: -- What was that? What's the answer to my question?

CORKRAN: Yes, I think you can grant cert before judgment --

ALITO: No, that wasn't my question.

CORKRAN: Yeah, but I will say --

ALITO: That's all right. You don't want to answer it.

CORKRAN: No, no, I will. I have any if I could give an answer, which is that I think it's very difficult, if we're not impossible, for the court to do a meaningful in Ken analysis without taking into account the fact that the government is asking the court to allow it to ignore this court's precedent, to ignore a duly enacted statute, and to upend 100 years of executive branch practice.

So, I think you know, although the court the government has attempted to separate them, that really the merits are embedded in Ken factors.

ROBERTS: Justice Sotomayor.

SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OF AMERICA: I find it hard to understand how a district court in looking at a preliminary injunction under the winter factors, where we said that the likelihood of success on the merits is the keystone, how we could separate that out and say the keystone of whether you're entitled to universal injunction is the only merits question, because the other factors are not eliminated by winter.

You have to balance the equities, and you can't balance the equities without the merits, correct?

CORKRAN: I think that's right. I think also I don't -- you know irreparable harm is going to be very difficult for the government to prove, if it's not contesting, that the -- or not contesting, at least not defending the constitutionality of the order, because the government has no interest in enforcing an unconstitutional order.

I'd also note there's a quote from Professor Bray and Justice Gorsuch's Texas concurrent currents. And it's inequity. It all connects. The broader and deeper the relief the plaintiff seeks, the stronger the plaintiff's story has to be. So, I think there really is kind of an equitable consideration here of the merits as well that just can't be extracted from the --

SOTOMAYOR: Now, the state has explained why it can't pursue class actions, so it really, it admits it's limited to whether it's entitled to complete relief. But how about your organization?

CORKRAN: I --

SOTOMAYOR: You sort of answered it, but I wanted to pin you down on that.

CORKRAN: No, I --

SOTOMAYOR: Can you believe that associational organizations can see class action? CORKRAN: I believe our individual plaintiff certainly can.

SOTOMAYOR: Yes, there's no question.

CORKRAN: I am nervous about the government suggestion that it's going to oppose our class certification motion if we were to file one class certification can be very discovery intensive. It could be the sort of thing that really delays our plaintiffs from getting the relief that they seek.

SOTOMAYOR: Thank you.

ROBERTS: Ms. Kagan.

KAGAN: Guess what I worry about here, Ms. Corkran, is that this case is very different from a lot of our nationwide injunction cases in which many of us have expressed frustration at the way district courts are doing their business. And you know, the typical way in which that frustration emerges is that questions -- legal questions, are hard and they're complicated and different courts would decide them differently, and instead, because of the forum selection process, a party goes to one place.

You know, in the first Trump Administration, it was all done in San Francisco, and then in the next administration, it was all done in Texas.

CORKRAN: Right.

KAGAN: And there is a big problem that is created by that mechanism. And that leads to the questions to you and to General Feigenbaum, which is, like, you know, your third buckets, which are, oh, if it's like, super important, or if it's quintessentially national, or whatever, the way, you know, is not going to solve our problem for that set of cases, which is not this case.

This case, what's problematic about it is that the courts keep deciding the same way, and nobody really thinks that the lower courts are going to do anything different.

CORKRAN: Right.

KAGAN: And it -- you know, for that reason, it does present the Catch Me If You Can problem that Justice Jackson said, and the problem of, how are we ever going to get a case here? But our general case is not like that. And I just want you to sort of comment on --

CORKRAN: Yeah. I'd say first that the government's proposal of channeling for rule 23 does nothing to solve anything you just described. I think the limiting principles that I was proposing, which again, was just me trying to reflect back to the court, kind of the through lines that it's been identifying are sufficiently concrete that if this court were to articulate them, it would cut back --

BASH: We're going to sneak in a quick break. You have, of course, been listening to a really, really important hearing at the supreme court, which could have major implications for Americans and for undocumented immigrants, not just related to citizenship, but across the board, and a whole host of topics and policies related to what the Trump White House wants to do.

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We're going to again, sneak in a break, but we're going to hear more on the other side, and also break it all down and explain what you're hearing means.

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BASH: Welcome back. The supreme court is hearing arguments on President Trump's push to end birthright citizenship. The consequences could go well beyond the scope of this one case that they are hearing. CNN's Paula Reid is outside the court.

Paula, tell us, first of all, the highlights of what we've heard so far in English, which is a bit different from what our viewers have been hearing, unless they are our lawyers are very much familiar with the language of supreme court arguments, but also the big picture of what this could mean.

PAULA REID, CNN CHIEF LEGAL AFFAIRS CORRESPONDENT: Dana, I speak fluent justice, and I like to think I speak fluent TV.

BASH: Perfect. You're exactly the translator we need.

REID: The stakes are really high for President Trump here, because what happens in this case could determine how quickly and effectively, he can implement his agenda through executive orders. Because the focus here today is on judicial power and whether one judge anywhere in the country should have the power to block a policy for the entire country, something called a nationwide injunction.

These have been imposed against every modern president, but none more than President Trump, because he does so many things through executive order. He has already issued a record more than 200 executive orders, and they have been blocked by these injunctions 49 times. Now today's case is specifically focused on his executive order ending birthright citizenship.

So, the right that if you were born in this country, even if your parents are not U.S. citizens, that you are a citizen. And the challengers argue that this is exactly why you do need one consistent policy for the entire country. So, if a judge is going to block this, you don't want a patchwork, because they argue it will create chaos.

And justice Kagan, she really hammered President Trump's Lawyer John Sauer on this issue. Let's take a listen to what she said.

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KAGAN: Let's just assume you're dead wrong. How do we get to that result? Does every single person that is affected by this E.O. have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is not -- that is the rule that we've historically applied rather than the rule that the E.O. would have us do?

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REID: It is clear that the liberal justices are not buying this argument from the Trump Administration, but they just need five conservative justices to agree that not only are these nationwide injunctions being abused, that they are in some way usurping the power that is supposed to be held by the president or by the legislative branch.

And Dana, based on the questions that we heard today, it does appear that the Trump Administration may have enough justices to either limit or eliminate these nationwide injunctions. And I just want to note, this is not specifically a Trump issue.

The past five justice departments have all opposed nationwide injunctions and said, look, this is a problem that needs to be addressed. And look, we'll see what the justices have to say about this when they issue their opinion, likely --

BASH: Yeah, I mean, President Biden, for example, signed several executive orders that were challenged, and he didn't want his to be overturned in a nationwide fashion either. So that's a really important point. Thank you so much, Paula, I know you'll keep listening. We'll get back to you, and I'm joined here by a terrific group of reporters and analysts.

CNN's Priscilla Alvarez, Edward-Isaac Dovere of CNN, Jamie Gangel as well, and CNN's Supreme Court Analyst Steve Vladeck. Steve, I'm going to start with you. Take it away about your big picture overview.

STEVE VLADECK, CNN SUPREME COURT ANALYST: I mean, it's hard to convey briefly just how big a deal the technical, nerdy, procedural issue in these cases is, but it really reduces to the question of whether, when the president does something that perhaps we all agree is unlawful, does every single person who's affected have to bring a lawsuit, or at least, you have to have a series of lawsuits on behalf of classes of everyone who's affected.

Or can you have one, or in this case, three lawsuits that TV issue up to the supreme court that give the supreme court a chance to say this is unlawful, you can't do that. Everyone agrees that once the supreme court says this is unlawful, it's a rule for the whole country, and it's a rule that protects everybody, but the fight is over, what happens until then?

And it takes 2, 3, 4, years for cases to get to the supreme court. And so, the question is, during that interim period, are we really going to make every single person bring their own case or be part of someone else's case, or are we going to allow for these kinds of nationwide lawsuits? Dana, the reason why that matter is not just for birthright

citizenship, right? So, in the birthright essential case, you've got 22 states that are plaintiffs, but you have 28 that are not. You have 5 individual named plaintiffs, and 1 organization that represents maybe a couple 100,000 people, but that's not going to cover anywhere close to all of the people who could be affected by this policy.

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