Tomorrow, I will have a piece on Lawfare about how the Court’s recent decision in Sessions v. Morales-Santana could impact the travel ban litigation. Beyond my errant tea-leaves-reading, there were two other noteworthy constitutional developments in the case.
First, without any fanfare, Chief Justice Roberts joined the section of Justice Ginsburg’s opinion where she reaffirmed Obergefell (Justices Thomas and Alito did not join this part of the opinion, and Justice Gorsuch did not participate). RBG wrote:
Moreover, the classification must substantially serve an important governmental interest today, for “in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality … that once passed unnoticed and unchallenged.” Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (slip op., at 20).
The word “today” is emphasized in the original. This is the first time the Court has cited Obergefell since it was decided on June 26, 2015. (Three days later, Justice Scalia cited it, derisively, in his Arizona Independent Redistricting Commission dissent). I am somewhat surprised the Chief did not balk at this citation, as it expressly extends Justice Kennedy’s scrutiny-less rubric to gender-based intermediate scrutiny. This phrase will be quoted over and over again. It is a potential time-bomb.
Second, in a footnote, the Court (perhaps) inadvertently weighed in on the question of whether Ted Cruz was eligible to be President:
When a child is born abroad to married parents, both U. S. citizens, the child ranks as a U. S. citizen at birth if either parent “has had a residence in the United States or one of its outlying possessions, prior to the birth of [the child].” §1401(a)(3) (1958 ed.); §1401(c) (2012 ed.) (same).
This was Cruz’s argument as to why he is a natural born citizen–he was a “U.S. citizen at birth,” though born abroad, because his parents were married, and they had residence in the United States prior to the child’s birth. This footnote was entirely unnecessary to the Court’s analysis. Perhaps it was smuggled in to address the natural born citizen question going forward?