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- Justices Debate Power of Judges Over U.S. Policies
Justices Debate Power of Judges Over U.S. Policies
The court seems torn — halt to Trump's order on birthright citizenship sets up a test
Matt Davis
May 16, 2025
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I had a great time last night live-emceeing a professional squash match between the Greenwich Panthers and the New York Knights who, like the New York Knicks will do tonight at Madison Square Garden, won their competition with an out of town sporting rival. That’s right, people. I also appear to be a Knicks fan now.
My fellow emcee Jana Shiha is a top-20 women’s squash player who first played professional squash on tour when she was 13. Currently I’m the 11,921st-best man at squash in the world by ranking, and the 784th best man in New York alone at the game. Among men over 45 years old I’m ranked 25th in the city, which means I either need to get better or wait for a bunch of my peers to die and I could be New York’s number one man over 90…in due course. Not that I felt any imposter syndrome. I have a British accent and was wearing a suit. Men like me have done far more with far less standing and far more serious consequences. The match, however, was an absolute ripper to watch and is available to watch on YouTube here. The National Squash League is doing its level best to make squash better for television in time for its debut at the 2028 Olympics in Los Angeles and I would say, in its second season, that it’s doing a fantastic job of that. Thanks for having me on board, guys!
A bunch of professionals with the aspiring Jesse Ventura of Squash:These are some of the best players in the world… Image courtesy Open Squash where, incidentally, you can now get a trial membership for just $70 and come and put me in my place…
Meanwhile today’s front page story in the New York Times — I remembered we were here to talk about something really consequential, after all! — focuses on yesterday’s Supreme Court hearing on a case involving birthright citizenship. It’s a big story because the judges wrestled between competing impulses. 1. Should a federal judge be able to block a presidential move for the whole country? The answer, obviously, is yes, if the presidential move is blatantly illegal. And 2. What if the thing it’s stopping is evidently terrible? Because that’s not a theoretical question, in this case.
But: Let’s let the Supreme Court mull it all over, shall we? Since this is, in theory, a democracy with three branches of government, only one of which is currently being dominated by a man with certain… impulses.
The Supreme Court wrestled on Thursday with the Trump administration’s complaints that federal judges have exceeded their authority in temporarily blocking some of his policy moves for the whole country.
Several of the justices appeared torn between two concerns. They appeared skeptical that single district judges should have the power to freeze executive actions throughout the nation.
But they also seemed troubled by the legality — and consequences — of the executive order underlying the case: an order issued by President Trump on his first day in office ending birthright citizenship, or the granting of automatic citizenship to all babies born in the United States.
Three lower federal judges have said Mr. Trump’s order violated the 14th Amendment of the Constitution as well as longstanding precedent and blocked the policy across the country. I mean obviously. But in an unusual move, the Supreme Court agreed to hear oral arguments yesterday over whether those judges should have limited their rulings only to the states where advocates and people had sued over the order.
Thank God I’m not a lawyer — I have to focus on my squash emceeing career, obviously — but that strikes me as rather dangerous territory. The Trump administration had asked the justices to consider the legality of such injunctions, which have been a major impediment to Mr. Trump’s agenda. Instead, the justices appeared to struggle with how they might quickly weigh in on the legality of the order, which the administration had not asked them to review.
I think the main reason the administration had not asked the judges to weigh in on the legality of the order itself, as I say, is because the order was, I’m certain, unconstitutional. My extensive legal training tells me that. And yet here’s one of the liberal justices (we categorize them based on whether Barack Obama appointed them, or Joe Biden, or…you know…anyone else) laying out the broader perspective on this:
“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,” Justice Elena Kagan said, appearing to articulate the view of several of the justices. She noted that such injunctions have been used to block policies under both Democratic and Republican administrations.
“In the first Trump administration, it was all done in San Francisco, and then in the next administration, it was all done in Texas, and there is a big problem that is created by that mechanism,” Justice Kagan said.
The birthright citizenship case, she said, presents a potentially unique problem: The government could lose repeatedly in lower courts, but if those losses applied only to individuals who sued and not millions of others, the government might not appeal. How then would the Supreme Court weigh in on the order’s constitutionality?
So really, this is about power. It’s about conservative judges hating judges in San Francisco and liberal judges hating judges in Texas. I must say I’m ready once again for this country to divide into two countries with the coastal regions run by one set of people (the better kind or certainly those with more to spend on expensive tableware) and the bits in the middle and around the South all run by another (which are obviously worse because people speak differently). Although apparently that might lead to a new “silver war,” as Nate Bargatze would call it.
@standupcomedycalveli Silver war 😂 | Nate Bargatze #NateBargatze #StandUpComedy #RelatableHumor #CleanComedy #TikTokLaughs
He IS funny, isn’t he? Even if he never says anything controversial. Maybe that’s the point. Then everyone’s favorite tearfully-accused judge, Brett M. Kavanaugh, pressed on how the Trump administration planned to carry out its order.
“What do hospitals do with a newborn?” Justice Kavanaugh asked. “What do states do with a newborn?”
I think the answer, obviously, is kill it. Although that could be awkward for leaders who profess the sacred right to life for (white?) babies at every turn. This is complicated!
The Trump administration’s attorneys said that “federal officials will have to figure that out.”
Good luck with that, guys. Sincerely. As the naturalized U.S. Citizen father of a U.S. Citizen baby I’m delighted with the current system. You’d be amazed at how often people hear my accent and ask me if I’m a citizen, however. I tell them I don’t discuss my immigration status, as if it were a microaggression to ask, because I love the word “microaggression” and it makes me feel powerful. I also love to describe myself as an “immigrant” because 1. I am one and 2. it underlines the fact that “immigration policy” in this country is really about how the majority of Americans wish the government treated brown people. (It does occur to me that ultimately the Trump administration could well just be trying to improve my New York squash ranking. But still.) Speaking of those people.
The Trump administration is not the first to confront the issue of lower court federal judges blocking policies on a sweeping basis. The debate over whether such freezes are legal has simmered for years. But Mr. Trump has expressed particular outrage about them since he returned to office.
Because he wants to be able to do whatever he wants to whoever he wants whenever he wants. The stakes here are high.
On issue after issue, the White House has been stopped by judges from carrying out Mr. Trump’s initiatives while they are litigated in court. Those efforts include his ability to withhold funds from schools with diversity programs, to relocate transgender women in federal prisons and to remove deportation protections from hundreds of thousands of Venezuelan migrants.
And if the Supreme Court makes a ruling about nationwide injunctions, all of those issues could get a lot worse for a lot of people, quickly. That’s why this legal debate yesterday was so chilling. Not just because Brett Kavanaugh suddenly wants to kill babies (I mean, he always looked like he did) but because Brett Kavanaugh wants Donald Trump to be able to do whatever Donald Trump wants.
A decision that limits nationwide injunctions could dramatically reshape how federal courts handle challenges to Mr. Trump’s policies, curbing the power of federal judges to swiftly block policies and bolstering executive power. Groups opposing Mr. Trump’s actions would most likely have to bring many individual claims, or pursue other legal pathways, such as class-action lawsuits.
Should the Trump administration sway the justices, the immediate implications for Mr. Trump’s executive action would not be entirely clear. “The groups that have challenged the order have warned of chaos, with birthright citizenship potentially ending in the states that sued but not in those that did not.”
Justice Sonia Sotomayor expressed similar concerns Thursday, arguing that the executive order violated multiple Supreme Court precedents. If judges were not allowed to block it, she said, it would affect “thousands of children who are going to be born without citizenship papers.” Some of them, she said, could be rendered stateless if their parents’ home countries did not accept them as citizens.
The Trump administration has said those concerns are “overblown” but they said that when people said Elon Musk might perhaps be a Nazi, and look what happened there. And here’s a lovely bit of reported detail.
Inside the courtroom, two top Justice Department officials were seated at the front of a section for members of the public. Todd Blanche, the deputy attorney general, and another senior official, Emil Bove, sat together and watched the hearing closely and impassively. At one point, when Justice Kagan discussed the Trump administration’s continuous losses in the cases and her belief that they would continue to lose, the audience laughed. Mr. Bove and Mr. Blanche did not.
It’s always the quiet ones, you know, that turn out to be the fascists.
Thanks for letting me read the newspaper so that you don’t have to. I’m sorry the news is not better. Let’s hope the Supreme Court justices do the right thing as they rarely have done lately.
Say, is there a story that might cheer me up a bit?
Sure. You could soon live in a midtown office building!
This all sounds rather experimental at best. I think young people care most about the cost of the rent, guys? But best of luck with this.
Matt Davis lives in Manhattan with his wife and kid.
Standard disclaimer: I read the top story in the New York Times every morning so that you don’t have to. If you were forwarded this, you can subscribe here. I’m also doing a five-minute video version of this, each weekday morning at around 9 a.m. (depending on how long it takes me to read the newspaper). If you’d like to follow me on LinkedIn (you can always watch the recording later). If you subscribe to my Youtube channel it’ll also send you a notification when I’m “going live.”