Supreme Court Justice Elena Kagan told the U.S. solicitor general on Thursday that if she were in his shoes, “there’s no way I’d approach the Supreme Court with this case.”
Listen to Kagan’s remarks in the video player above.
D. John Sauer, the government’s lead attorney, appeared before the high court to argue that federal court judges have overstepped their authority by issuing nationwide injunctions against the Trump administration’s executive order on birthright citizenship.
Kagan, who served as U.S. solicitor general during the Obama administration, asked Sauer why the government has only argued against the use of nationwide injunctions and not presented the “substantive question” about the constitutionality of the president’s executive order.
LISTEN: Supreme Court hears arguments on Trump’s challenge to birthright citizenship
Trump signed the order in question shortly after taking office on Jan. 20. The order seeks to end birthright citizenship for anyone born in the U.S. to parents who were in the country illegally.
“Let’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue, and that you never take this question to us. … You need somebody to lose, but nobody’s going to lose in this case,” Kagan said. “You’re going to have, like, individual by individual by individual, and all of those individuals are going to win, and the ones who can’t afford to go to court, they’re the ones who are going to lose.”
Sauer responded that “the tools that are provided to address hypotheticals” like what Kagan provided.
“This is not a hypothetical,” Kagan said. “This is happening out there, right? Every court has ruled against you.”
Sauer said the government has “only had snap judgments on the merits” of the case.
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