Justice Kagan Questions Solicitor General on Birthright Citizenship Case

Kagan's Skepticism on Bringing the Case

• 💡 Justice Kagan expressed doubt about the government's decision to bring the birthright citizenship case to the Supreme Court, stating "there's no way I'd approach the Supreme Court with this case" if she were in the Solicitor General's position.
• 🎯 She questioned why the government focused on the issue of nationwide injunctions rather than the substantive question of the executive order's constitutionality.

The Government's Strategy

• 📌 The Solicitor General, D. John Sauer, explained that the government deliberately did not present the merits of the case to avoid complicating it as a "clean vehicle" for the Court.
• ⚠️ Kagan countered that the government is consistently losing in lower courts and that the current approach might not resolve the issue for many individuals.

Challenges with Individual Cases

• 🧩 Kagan highlighted that if the government only litigates individual cases, those who cannot afford legal representation might be disadvantaged.
• ⚖️ She suggested that the government's strategy of fighting case by case means that while individuals might win, the broader substantive question remains unresolved.

Court's Role and Future of the Case

• 🚀 Kagan pointed out that the government has no incentive to bring this case to the Supreme Court because it can still enforce its policy against the majority of people.
• 📈 The Solicitor General indicated that if the government loses in the lower courts, they would absolutely seek certiorari from the Supreme Court.