No. of Recommendations: 6
Welp, we can all agree to disagree. He's banking on Roberts being his usual "avoid anything that rocks the status quo" self but what he forgets is that when these bills go to conference the justices vote on what they take up.
Something like this - significant Constitutional ambiguity with proven significant economy, social and national security ramifications - is almost assured a hearing in front of the court.
Roberts is well aware that cert petitions go to conference for a vote. Again, my point was that the Court won't take cert unless there's a majority that actually disagrees with the lower court ruling. If there's a majority of Justices who agree with the Ninth or First Circuit's (likely) finding that this is unconstitutional, then it's unlikely the minority would press for cert review. (Note there's also always the possibility that a lower court does something the SCOTUS disagrees with on an issue other than the merits, like standing or process, that might generate a cert review while the merits go unaddressed).
There's no "significant Constitutional ambiguity." The current interpretation of the 14th Amendment - that it covers all the people the EO tries to deny citizenship to - is the overwhelming mainstream interpretation. To the point where the contrary interpretation isn't even a minority construction - it's a fringe belief. There's no court that's ever agreed with it at any level (AFAIK). It's not being seriously being promoted in academic literature. It's never been thrown out there, even in dicta in a dissent, by any Justice.
The Court generally weighs in only when there is a live dispute over what the law is - either a dispute between parties in a case that requires resolution or a split between how the different circuits are applying the law. Right now there's a live dispute, but it's in the process of being ruled upon. If the circuit courts interpret the law and the SCOTUS thinks they're getting it right, there's no need for them to weigh in. As long as the law is always being applied in the way the Court thinks is correct, they generally won't act.
Because I'm pretty sure there aren't five votes on the Court to support this theory, I don't think they'll grant cert - but I'm dead sure they won't grant cert just to affirm the lower court holding in full. They just don't do that absent a split in the circuits or an exigent deadline that doesn't allow for the circuits to weigh in.
