SCOTUS Sets Special May Sitting In Birthright Citizenship Case

Today the Supreme Court set oral argument for the birthright citizenship cases on May 15:

Consideration of the application (24A884) for partial stay presented to The Chief Justice and by him referred to the Court is deferred pending oral argument. Consideration of the application (24A885) for partial stay presented to Justice Kagan and by her referred to the Court is deferred pending oral argument. Consideration of the application (24A886) for partial stay presented to Justice Jackson and by her referred to the Court is deferred pending oral argument. The applications are consolidated, and a total of one hour is allotted for oral argument. The applications are set for oral argument at 10 a.m. on Thursday, May 15, 2025.

May and June oral arguments are quite rare. (I do not count regularly-scheduled cases from the April sitting that spill into May.) In 2017, I tracked three such cases in recent decades:

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn’t be so rushed:

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court’s jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel’s request for handwritten notes from Vince Foster’s attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that ”the High Court agreed to hear the case unusually quickly.”

And who argued Swidler & Berlin? Brett Kavanaugh, who was working for the Independent Counsel.

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