Joan Biskupic on Courts Sparing Over Birthright Case: They Gave This Decision to the Most Junior Justice of the Conservative Block

RUSH EXCERPT:
BISKUPIC: "Of course. So we come in and we know we have six major rulings left. And I‘m thinking this is going to come last just because it‘s the biggest. And the chief is probably holding on to it is the chief justice. John Roberts typically keeps the biggest decisions for himself, but he announces from the bench that justice Barrett will be reading this, which means, Jake, he has given this important decision to the most junior justice of the six six conservative block, giving her a lot of authority to do something. She laid out how history and tradition dictates this outcome in the minds of the conservatives, and tries to emphasize how limited it is. And first, before we get to Justice Jackson, Justice Sotomayor then speaks from the bench, while Justice Jackson is looking straight ahead. During all this, Justice Sotomayor is the senior justice on the liberal side. So she then took 20 minutes to talk about how misguided this was and how this was going to be so bad for individual rights, including birthright citizenship. And I‘m thinking, wow. But then I see the written opinions of the justices and Justice Jackson, our newest justice, who came on in 2022. Ketanji Brown Jackson has written something even fiercer. And let me just let me just say what Justice Jackson wrote in her dissenting opinion. And I think we have it to put up on the screen. It is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional replic will be no more."

TAPPER: "That‘s pretty dark."

BISKUPIC: "Very dark. And that‘s why I said I was surprised. Went darker than Justice Sotomayor did. So then justice Barrett counters that in her written one, she doesn‘t refer to it at all from the bench, but in a written one, you‘ll see what she says. Is she names Justice Jackson. She says Justice Jackson decries an imperial executive while embracing an imperial judiciary. No one disputes that the executive has a duty to follow the law, but the judiciary does not have unbridled authority to enforce this obligation. She would do well to heed her own admonition. Everyone from the president on down is bound by the law. That goes for judges, too. And you too. You know, you could feel that in the rhetoric between the two of them. And this has been a very common theme for this term so far."