At the Supreme Court, equal justice and what it means to be an American are at stake

Welcome back, Deadline: Legal Newsletter readers. With President Donald Trump making an unprecedented appearance on Wednesday, the Supreme Court considered his bid to single-handedly redefine American citizenship. The hearing went poorly for the administration, but let’s spotlight some other high court news before getting into why.

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The week started with the court leaving an “injustice in place,” according to a dissent by Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson. The Democratic appointees’ complaint came on Monday’s order list, where among the rejected petitions was one from James Skinner. The justices previously vacated the murder conviction of Skinner’s co-defendant, Michael Wearry, because Louisiana prosecutors failed to disclose favorable evidence. Yet, Skinner couldn’t get the requisite four votes to hear his appeal. That led Sotomayor to write that her and Jackson’s colleagues violated the principle engraved on the court’s building: “Equal justice under law.”

The same principle featured in another appeal, argued Tuesday, regarding discrimination in jury selection. Ahead of the hearing, Mississippi death row prisoner Terry Pitchford argued in his brief that the state courts’ failure to scrutinize the striking of Black prospective jurors “undermines the foundational promise of equal justice under law.” Pitchford was tried by the same prosecutor, Doug Evans, whose discrimination led the court to side with another Mississippi death row prisoner, Curtis Flowers, in a 2019 ruling by Justice Brett Kavanaugh. The Trump appointee has been interested in the jury issue at least since his law school days, and he could prove pivotal in the Pitchford case.

After joining Sotomayor in Monday’s Skinner dissent, Jackson dissented again in a case decided Tuesday. The court sided with Kaley Chiles, a Christian counselor who appealed against Colorado’s ban on so-called conversion therapy for minors. But unlike in the Skinner case, the Biden appointee was alone in protesting the 8-1 ruling in Chiles v. Salazar. Justice Neil Gorsuch wrote for the lopsided majority that the state ban, as applied to Chiles’ talk therapy, conflicts with First Amendment principles because it regulates speech based on viewpoint. Jackson, who read some of her dissent from the bench in a rare move signifying her extreme displeasure with the outcome, wrote that the majority “plays with fire in this case” and that she fears “the people of this country will get burned.”   

Turning to birthright citizenship, the hearing can be summed up by an exchange between Chief Justice John Roberts and Solicitor General John Sauer. Seeking to defend Trump’s executive order that flies in the face of the Constitution, law and the court’s own precedent, Sauer argued that we’re “in a new world” from the one that cemented birthright citizenship in the wake of the Civil War. 

“Well, it’s a new world,” the chief justice acknowledged, but he observed that “it’s the same Constitution.”