Divided Supreme Court on full display heading into birthright citizenship hearing

Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — The Supreme Court that will hear a case over birthright citizenship this week has been acting less like a group seeking consensus and more like nine justices clinging to their own interests.

Ruptures have occurred in litigation arising from President Donald Trump’s effort to transform the federal government and remake America. But more broadly, the fractured court has been evident in the justices’ separate opinions, behavior on the bench, and public appearances. Justices have increasingly gone their own way in memoirs and books, too.

As a result, the court may be less inclined to speak with one voice. The riven justices could, as the country hurtles toward a possible constitutional showdown, risk appearing like yet another set of political actors, unable to meet head-on threats to the rule of law.

Lower court judges have found over and over that the Trump administration has rejected statutory and constitutional guarantees, including, as one judge observed last week, “that neither citizen nor alien be deprived of life, liberty, or property, without due process of law.”

Thursday’s hearing in the white marble and heavy red drape setting will offer the first Supreme Court oral arguments over any second-term Trump initiative since Chief Justice John Roberts swore in the president on January 20.

The birthright citizenship case could become a platform for the agendas of individual justices. Already, the focus of “friend of the court” briefs varies widely as outside groups – from constitutional scholars and legal historians to the Chamber of Commerce and Restaurant Law Center – see the case as a catalyst for their respective issues.

The justices have not specified the legal questions they’re taking up, as is normally the situation. But based on the Trump administration’s request for emergency intervention and the limited filings at this point, the justices are likely to decide an important procedural issue, rather than directly decide who’s entitled to citizenship.

The procedural issue centers on the method lower court judges have employed to stall Trump’s proposed end to citizenship for anyone born in the United States. (With limited briefing and a compressed schedule for a ruling, it’s doubtful the court would fully address the constitutionality of erasing the birthright promise, which traces to 1868 and ratification of the 14th Amendment.)

The method invoked against the Trump administration is known as a “nationwide injunction,” when a single US district court judge blocks enforcement of a government action not merely in the judge’s district but throughout the country. Administration lawyers have urged the justices to narrow the injunctions to cover only those parties to the cases.

A resolution could affect challenges to a vast array of new presidential policy for years to come.

When the Supreme Court of earlier eras faced confrontations involving a president, the justices strove for unanimity. But last year’s decision in the Trump v. United States presidential immunity case showed this court unable to pull together the kind of consensus seen in previous separation-of-powers landmarks.

Moreover, the justices on the dominant right side of the bench and the dissenting left have increasingly splintered. Roberts is often stymied in compromise by such fellow conservatives as Justice Samuel Alito. And liberal Justice Ketanji Brown Jackson shows no qualms about breaking from her senior colleagues on the left to pen her own dissenting opinion.

Jackson, who by virtue of her newest-justice status sits at the far end of the bench, has sometimes seemed remote, both literally and figuratively.

In a recent speech at a legal conference in Puerto Rico, Jackson criticized the rhetorical attacks on the judiciary emanating from the administration but also referred to the loneliness that can seize a judge hearing difficult cases.

“I do know that loneliness from my own service as a district judge in the District of Columbia,” she said. “It is very stressful to have to decide a difficult case in the spotlight and under pressure. … When you add to that having to endure baseless attacks on your intelligence and integrity – coming from people who are not so subtly trying to influence your decision-making – it can sometimes take raw courage to remain steadfast in doing what the law requires.”

Within their own court ranks, Jackson and Alito have each leveled piercing criticism against colleagues, in opposite directions.

In a Saturday night dissent on April 19, Alito unspooled his pique in seven bullet points, angry that the majority had prevented the administration from speedily deporting a group of migrants in Texas as it had done with a separate set of migrants to El Salvador in March.

Alito, joined only by Justice Clarence Thomas, disapprovingly noted that the emergency request from the migrants’ lawyers had come in “on Good Friday afternoon,” and he condemned his colleagues for responding “hastily and prematurely … with dubious factual support” to thwart the administration.

Preliminary challenges yield split votes

While the birthright citizenship case is the first Trump controversy the justices will air in their courtroom, they have decided several other preliminary challenges to his second-term initiatives behind the scenes based only on filings.

All have yielded split votes, with the deportation controversies being most fractious. As Justice Sonia Sotomayor dissented in an April 7 case centered on Trump’s effort to use the 18th century Alien Enemies Act to round up Venezuelan migrants and fly them to a Salvadoran prison, she condemned the administration and her colleagues on the right wing who accepted some of its arguments.

“History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise,” she said, “Because the Court should not reward the Government’s efforts to erode the rule of law … I respectfully dissent.” She was joined by Jackson and the court’s third liberal, Justice Elena Kagan.

Jackson then broke off and turned up the heat by referring to the court’s infamous 1944 decision in Korematsu v. United States, permitting the internment of Japanese Americans during World War II, and writing, “We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”

Some conservatives have spared no outrage.

After the court on March 5 rejected a Trump request to keep billions of dollars in foreign aid approved by Congress frozen, Alito wrote that he was “stunned.” He also declared that the lower court judge who’d temporarily blocked Trump’s freeze on the foreign aid had engaged in “an act of judicial hubris.”

Signing onto that dissent were Thomas and two of Trump’s appointees from his first term, Justices Neil Gorsuch and Brett Kavanaugh.

Kavanaugh has written separately to play down the ideological differences. And he regularly breaks away in a concurring opinion that tries to appease the losing side.

Later in March, Kavanaugh joined the majority’s decision upholding federal regulations for licensing “ghost guns,” weapons built from mail-order kits. But then Kavanaugh wrote separately to express concern, and potentially to protect from prosecution, individuals and businesses who might “have substantial difficulty determining when weapon parts kits or unfinished frames or receivers qualify as firearms” and inadvertently face stiff penalties.

Kavanaugh’s statement prompted Sotomayor to then respond in her own solo concurrence: “That worry is unfounded. For more than half a century, firearms dealers, manufacturers, and importers have complied with the Gun Control Act’s requirements. … What is new is that some manufacturers have sought to circumvent the Act’s requirements by selling easy-to-assemble firearm kits and frames, which they claim fall outside the statute’s scope. … The Gun Control Act does not tolerate such evasion.”

Kavanaugh, who at his 2018 confirmation hearings, repeatedly spoke of being “a team player on a team of nine,” had in earlier years been more of a partner to Roberts for compromise at the center of the bench.

In recent cases, however, Justice Amy Coney Barrett, Trump’s third appointee, has been more inclined to move to the center.

Of the nine, Roberts and Kagan are less apt to write separately to put an additional slant on a majority opinion. They are ideological and political opposites, but share an institutional mindset.

Kagan, to be sure, does not mask her views during oral arguments. In an April dispute over the validity of a task force that recommends preventative health care services under Obamacare, she alluded to the conservative majority’s larger pattern of limiting the power of independent panels.

“We don’t go around just creating independent agencies,” she quipped. “More often we destroy independent agencies.”

The most intriguing member of the bench remains Barrett, who has an overall conservative record but pulled away from her brethren on enough instances to provoke great wrath from Trump hardliners.

She may have pushed for Thursday’s special hearing in the birthright citizenship case. When she separated herself from fellow conservatives who summarily threw out a US district court judge’s order in the early April Venezuelan-migrant case, she signed onto a part of Sotomayor’s dissent criticizing the majority for reaching its conclusion “without oral argument or the benefit of percolation in the lower courts, and with just a few days of deliberation based on barebones briefing.”

Barrett is bound to offer the public greater insight into her way of operating in September, when she will publish a book on her life and approach to the law. (Last year, Jackson published a memoir titled “Lovely One,” and Kavanaugh is set to publish his own judicial memoir next year. Thomas, Sotomayor and Gorsuch have previously written memoirs and books.)

According to promotional materials for Barrett’s “Listening to the Law: Reflections on the Court and Constitution,” her book will answer such questions as “How has she adjusted to the Court? What is it like to be a Supreme Court justice with school-age children? … How does the Court get its cases? How does it decide them?”

And, in a final question crucial for court watchers, the materials concluded, “How does she decide?”

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