Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,' a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.
“Please explain why it appears that Justice Barrett’s opinion permits plaintiffs to resubmit their cases as a class action that would protect birthright citizenship nationwide.” — Emily Hi Emily, Yes — the court’s opinion in the birthright citizenship case, which curbed the use of nationwide injunctions, left open the possibility of using class actions.
In fact, plaintiff lawyers have already filed for such actions on Friday, the same day that the Supreme Court’s ruling came out. “The Supreme Court has now instructed that, in such circumstances, class-wide relief may be appropriate,” plaintiff lawyers wrote to one of the trial judges who had previously issued a nationwide injunction. They cited Justice Brett Kavanaugh’s concurring opinion that said trial courts can “grant or deny the functional equivalent of a universal injunction — for example, by granting or denying a preliminary injunction to a putative nationwide class.” They also cited Justice Sonia Sotomayor’s dissent, where she wrote that parents of children targeted by President Donald Trump’s order “would be well advised to file promptly class-action suits and to request temporary injunctive relief for the putative class pending class certification.” So, just change the name of the lawsuit and it’s all good, right? Not so fast. At least, not necessarily. Indeed, Justice Samuel Alito wrote a concurrence to Justice Amy Coney Barrett’s majority opinion that pre-emptively raised skepticism about the success of class actions here. Joined by Justice Clarence Thomas, Alito worried that “today’s decision will have very little value if district courts award relief to broadly defined classes without following ‘Rule 23’s procedural protections’ for class certification.” Alito further warned that “lax enforcement” of the rules “would create a potentially significant loophole to today’s decision.” He urged federal courts to “be vigilant against such potential abuses of these tools.” To be sure, that’s not a majority opinion from Alito, even if he tried to implicitly ascribe his views to the majority at the end there. But in practical terms, his concurrence reflects that there are at least two justices prepared to view class-action relief with skepticism. We may not learn what the full majority thinks unless and until the case goes back to them. But hopefully the court will get to the heart of the matter sooner rather than later and declare what lower-court judges have had an easy time finding: Trump’s attempt to restrict birthright citizenship is unconstitutional. Recall that the administration took pains to focus on the procedural aspect of the litigation, not seeking a ruling on the merits from a high court that’s been sympathetic to the administration in other cases. That strategic litigation choice appeared to be an admission that the administration thinks it would lose on the merits, if and when the justices reach them. That made this case all the poorer a choice for the majority to have used to reach a formally unrelated decision about the validity of universal injunctions. The court could’ve taken on the injunction issue in any other number of cases. Nonetheless, the next step in the birthright citizenship litigation may have to be another round of procedural games — this time on class actions — all while the underlying illegal order remains unremarked upon by the majority.
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