Donald Trump losing Trump v. Barbara was the least surprising ruling of the term. That said, it was one of the more surprising decisions because while the Fourteenth Amendment is clear and literally no one doubted its meaning until about a year ago, a few of the justices decided that to embrace the “Eli Cash Doctrine” and declare “maybe it isn’t?” The intellectual dishonesty on display, especially in Clarence Thomas’s 90+ page collection of nativist fan fiction, demeaned the Court, but was ultimately inconsequential to the outcome. Birthright citizenship is, as it has been since the ratification of the Fourteenth Amendment, the law of the land. It cannot be waved away by executive order.
Trump once said, “We’re going to win so much, you may even get tired of winning.” Apparently, he has. Because he wants to be dealt another Supreme Court L.
In between naps yesterday, Trump announced on Truth Social that he will ask the same Court to do the whole thing over again — “IMMEDIATELY” — because the decision was “absolutely insane” and a “miscarriage of justice.”
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Does it help a motion for rehearing to preface it with “absolutely insane”? Asking for an idiot.
There are no signs and billboards all along the border advertising $4000 deliveries. Where would they even put them? By my rough estimation, 99.9 percent of the nation’s billboard space is taken up by Morgan & Morgan. Trump seems to draw this $4000 claim from a different faux outrage pushed by Texas officials, claiming that a regional hospital offering low flat fee obstetrician services in 2021 amounted to enticing migrants to cross the border.
Everything with this guy is like a game of telephone, except the first player is a white nationalist and the last is a white nationalist with dementia.
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Anyway, Trump will not get a rehearing. Steve Vladeck walked through this nerdy corner of Supreme Court practice a couple years ago when liberals were fantasizing about a rehearing in the Trump immunity case. His conclusions about Rule 44 still hold. The Court last granted rehearing in an argued case in 1965, and even that was only to tweak the judgment. The last time it reheard a case and actually reversed its decision on rehearing was in 1956. That case, Reid v. Covert, marks the only such reversal in the Court’s entire history.
And the vote math is worse than the procedural hurdle. Under Rule 44, a merits rehearing cannot be granted except by a majority of the Court, and only at the instance of a justice who concurred in the judgment. The three full dissenters — Thomas, Alito, and Gorsuch — cannot initiate a rehearing vote. Technically, Kavanaugh joined the judgment but disagreed with the majority’s constitutional conclusion, so maybe that’s enough to get the ball rolling, but he’d still need to convince Roberts or Barrett to radically change their minds within a matter of weeks based on… nothing.
Frankly, under those facts, if one of them did, it should trigger an immediate question about extortion. Though maybe threatening Supreme Court justices is an “official act” under Trump v. United States.
That would require shame. The Solicitor General, presumably, understands that this is a nonsense motion. But he was willing to spend over an hour challenging a bedrock principle of constitutional law with allusions to “Roman law sources” so he’s proven he’s up for any degree of professional debasement to stay in this administration. He just finished asking the Court to reconsider its refusal to hear his E. Jean Carroll appeal, so baseless rehearing petitions are fast becoming a reflex. A frivolous motion is a small price to pay to pass a loyalty test.
Unless we’re going to get serious as a profession about penalizing this conduct.
That is the whole architecture of a loyalty regime — the demand never resolves, it escalates, and the cost of staying is doing the next hopeless thing on command. Trump already told the justices he appointed that he expects their votes as a personal debt. Now he expects his Solicitor General to un-lose a case. None of this stuff works, but they’ll keep making a mockery of the system to keep on the happy side of their petulant boss.
You let this guy overturn a red card and suddenly he thinks the Supreme Court is as unprincipled as FIFA. Which it is, but unlike FIFA, the justices’ egos prevent admitting that they could be wrong. And if he were to secure a rehearing, it would end just about as well as that red card did.
Earlier: Supreme Court Narrowly Passes Reading Comprehension Section
Justice Gorsuch’s Birthright Citizenship Dissent… Will Not Make Donald Trump Happy
Donald Trump Went To Supreme Court To Watch Live As Birthright Citizenship Policy Got Thoroughly Smoked
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.