During Thursday's Supreme Court oral arguments, Justice Ketanji Brown Jackson questioned an attorney about the Trump Administration's actions during litigation over cases challenging their actions.
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00:00Justice Jackson?
00:01So I guess I'm kind of hung up on the posture in which we find ourselves looking at these issues.
00:08You know, Justice Alito, I think, focused on this a little bit, you know,
00:12when he says that the district court makes this initial determination, it turns out to be wrong.
00:19The remedy, I thought, was to appeal.
00:22And I guess for me the question is whether and under what circumstances the government keeps on doing the thing that the court has found unlawful
00:35while the litigation is proceeding to determine whether or not the government's activity violates the law.
00:43We're sort of in an interim posture.
00:45Many of your arguments, and I appreciate them, are kind of couched in, you know,
00:51the state is going to need complete relief for their injury, and that's true definitely as a final matter.
00:58But here we are at the beginning of this litigation.
01:02No one has determined whether or not the government's conduct is actually unlawful.
01:07We have a district court, several district courts, and now courts of appeals that say it is,
01:13and so, as an interim matter, we are saying the government has to stop doing it while we litigate the issue of the unlawfulness.
01:22To me, that kind of puts the whole thing in a different frame.
01:26It's sort of like, why isn't the question in this posture, in this circumstance,
01:32can the government or has the government shown that it is going to suffer some sort of harm
01:39from being made to completely stop this activity while we're litigating the lawfulness of the conduct?
01:45I don't understand.
01:46And then you say, yes, we are going to suffer harm.
01:49This is the balance of the equities that are, you know, part of the PI and the state showing,
01:54but I just don't understand why that's not the focus here.
01:58And I don't know what the—and I apologize because I didn't get a chance to ask Mr. Sauer this,
02:02and maybe he can address this on his rebuttal, but, you know, what problem is the government facing
02:10as a harm matter from being completely told it has to stop doing this while we determine,
02:18we, the court system, determine whether or not its conduct is lawful?
02:21So we—I mean, we included this in our application.
02:24We do think this case is quite unique in that I do think it's hard for the government to show
02:28in this particular case that it needs to be able to act contrary to this court's settled precedent.
02:33That's obviously come up in a couple of questions today.
02:35It's something if I realize the elephant in the room.
02:37I've often been asked to assume that the merits are put to the side,
02:41and I'm fine assuming that for those questions.
02:43But to your point, you're not wrong.
02:45It is quite striking, obviously, that it's not just that district courts are saying,
02:50this looks like it might be unlawful.
02:52They're saying, Wong Kim Ark settled this exact issue 127 years ago.
02:56This court has reaffirmed it since.
02:58Over a century of executive practice has built on that,
03:01and Congress has codified that directly into law.
03:03So I do think it's a particularly unusual case for the government to be saying
03:07that it has been quite so harmed and needs this kind of relief.
03:10But at the end of the day, I'm happy to join issue on when relief may or may not be appropriate,
03:14and I just think we're clearly on the other side.
03:15But you're saying that at least in some circumstances from your perspective,
03:19in order to even decide whether or not you are entitled to an interim complete injunction,
03:26the court's now going to have to peek at the merits while the merits are being litigated.
03:32I think the court always has to peek at the merits in deciding whether the party itself
03:35should be getting relief from its harms, including complete relief as even the United States accepts.
03:40So those are all four of the winter factors.
03:42You have to figure out what the irreparable harm is that you're trying to deal with.
03:45You have to figure out if we have a sufficient merits showing in order to eliminate that irreparable harm.
03:50And depending on the strength of the merits showing,
03:52you're also looking at winter's factors three and four.
03:54So this court has given four winter factors that I think are quite useful in most cases.
03:58I took my friends on the other side to be saying,
04:00well, beyond the winter factors, there's this bright line rule from Article 3 or the history of equity
04:05that just says it can never get to this point.
04:07I obviously disagree a bit with them on the reading of that history,
04:10but I just think it has no bearing on the case that the states bring to this court here.
04:14Thank you, Council.