I was expecting that the Court would rule in Trump v. Barbara that President Trump’s executive order violates 8 U.S.C. § 1401(a) and thus find it unnecessary to decide the meaning of the Fourteenth Amendment’s Citizenship Clause. But there obviously weren’t five justices willing to take that route. It’s worth pondering why.
Chief Justice Roberts has repeatedly articulated “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” At the same time, he has stated that “certainly there are cases that warrant an exception.” (I’m quoting his opinion concurring in the judgment in Dobbs, where I don’t think that his principle actually applied, but that’s another matter.)
So did the Chief try to get five votes for a statutory holding? Or did he judge this from the outset as a case that “warrant[ed] an exception” to the principle? And if so, why?
I recall being surprised how little attention this statutory path received at oral argument. Maybe that’s because the Chief had no interest in exploring it. Or perhaps he had already determined that there weren’t five votes for it.
Why there wouldn’t be five—or, rather, six—votes is curious. We can start with Justice Kavanaugh, who did rely on section 1401(a) in his concurrence in the judgment. Add to him all five justices in the majority, who obviously agree that Trump’s executive order violates section 1401(a).
Maybe the liberal justices didn’t want a narrow ruling and were eager to deliver a resounding defeat to Trump. Perhaps the Chief also thought it important to resolve the constitutional question. Or perhaps he thought that he had no choice once he realized that the liberal justices wouldn’t go along with a statutory ruling. [7/3: Another possibility is that the members of the majority, unlike Kavanaugh, saw no way to rule on the statutory question without also deciding what the Citizenship Clause means.]
One alternative would have been a ruling with no majority opinion: an opinion of three justices—the Chief, Kavanaugh, and Barrett—ruling against Trump on the statutory question, and an opinion of the three liberal justices ruling against him on the constitutional question. (Or a different division: Kavanaugh and Barrett on the statute and the Chief and the three liberals on the Constitution.) But the Chief and Barrett evidently decided that was undesirable.