Trump-Appointed Justice’s Quip Draws Laughter After Kagan Torpedoes Sauer In Court

Trump-appointed Supreme Court Justice Neil Gorsuch drew laughter with a well-timed quip after liberal Justice Elena Kagan spent several minutes torpedoing Trump Solicitor General John Sauer during oral arguments in a landmark citizenship case on Thursday.

The Court is considering the arguments being made in the combined cases Trump v. CASA, Trump v. Washington, and Trump v. New Jersey, which challenge injunctions against President Donald Trump’s executive order attempting to end birthright citizenship.

CNN covered the live audio of the trial on Thursday’s edition of CNN’s The Situation Room, during which Kagan and Justice Amy Coney Barrett took on Sauer’s argument that the Court should not settle the question once and for all with a nationwide injunction, but rather consider individual cases

Several minutes later, Kagan grilled Sauer from a different angle, asking what’s to prevent the government from taking individual losses in lower courts and never bringing the issue before the Supreme Court.

After a few minutes of this, Gorsuch quipped “Well, Justice Kagan asked my questions better than I could have,” and similarly asked Sauer to explain how they should “reach this case on the merits expeditiously”:

JUSTICE ELENA KAGAN: Yes, you’re ignoring the import of my question. I’m suggesting that in a case in which the government is losing constantly, there’s nobody else who’s going to appeal. They’re winning. It’s up to you to decide whether to take this case to us. If I were in your shoes, there is no way I’d approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what’s supposed to happen to prevent that?

TRUMP SOLICITOR GENERAL JOHN SAUER: Again I respectfully disagree with that forecast of the merits but in response to the question what I would say is we have an adversarial system and if the government is not for example not respecting circuit precedent on the court’s hypothetical in the second circuit, someone easier in the Second Circuit could take the case up and they could say look the government is violating circuit precedent and on the hypothetical multiple circuits. That’s the case we’re going to take.

JUSTICE ELENA KAGAN: Somebody who says, you know, after we’ve said that this all has to be done one by one by one, then we’re going to take a case from somebody who objects to proceed in one by one by? I’m not sure I understand the question. I understand that. If you win this challenge and say there is no nationwide injunction and it all has be through individual cases, then I can’t see. How an individual who was not, you know, being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us.

TRUMP SOLICITOR GENERAL JOHN SAUER: They would bring a lawsuit in the federal district courts against the government for an injunction protecting them. And if the government wasn’t respecting, you know, on the ethical circuit, it wasn’t.

JUSTICE ELENA KAGAN: Win and again I mean you need somebody to lose but nobody’s going to lose in this case it’s just you’re 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 lose. The tools that are provided to address hypotheticals like this again I this is not a hypothetical this is happening out there, right? Every court…

TRUMP SOLICITOR GENERAL JOHN SAUER: Has ruled against you we’ve only had snap judgments on the merits you obviously were fully briefing the merits in the courts of appeals and our arguments are compelling more fundamentally in response

JUSTICE ELENA KAGAN: to you, like the real brunt of my question is in a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything. It’s losing a lot of individual cases which still allow it to enforce its CEO against the vast majority of people to whom it applies. And again, rule 23.

TRUMP SOLICITOR GENERAL JOHN SAUER: Provides an avenue to present to address those very concerns. Thank you. Justice Gorsuch.

JUSTICE NEIL GORSUCH: Well, Justice Kagan asked my questions better than I could have.

(LAUGHTER).

How do you suggest we reach this case on the merits expeditiously?

TRUMP SOLICITOR GENERAL JOHN SAUER: There’s a number of tools the court can do that. We think this case is one that cries out for percolation.

Watch above via CNN’s The Situation Room.