Judge Sonia Sotomayor questions attorneys during oral arguments in a key case involving birthright citizenship.
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00:00I find it hard to understand how a district court, in looking at a preliminary injunction
00:10under the winter factors, where we said that the likelihood of success on the merits is
00:17the keystone, how we could separate that out and say the keystone of whether you're entitled
00:24to universal injunction is the only merits question because the other factors are not
00:32eliminated by winter.
00:34You have to balance the equities and you can't balance the equities without the merits, correct?
00:39I think that's right.
00:40I think also irreparable harm is going to be very difficult for the government to prove
00:45if it's not contesting or at least not defending the constitutionality of the order because
00:50the government has no interest in enforcing an unconstitutional order.
00:54I'd also note there's a quote from Professor Bray in Justice Gorsuch's Texas Concurrents
01:00and it's, in equity, it all connects.
01:02The broader and deeper the relief the plaintiff seeks, the stronger the plaintiff's story has
01:06to be.
01:07So I think there really is kind of an equitable consideration here of the merits as well that
01:11just can't be extracted from the state.
01:13Now the state has explained why it can't pursue class actions.
01:17So it really, it admits it's limited to whether it's entitled to complete relief.
01:25But how about your organization?
01:29You sort of answered it, but I wanted to pin you down on that.
01:33Do you believe that associational organizations can seek class action?
01:39I believe our individual plaintiffs certainly can.
01:41Yes, there's no question.
01:42I am nervous about the government's suggestion that it's going to oppose our class certification
01:47motion if we were to file one.
01:48I mean, class certification can be very discovery intensive.
01:53It could be the sort of thing that really delays our plaintiffs from getting the relief that
01:57they seek.
01:58Yes, thank you.
02:16Yeah.
02:16Yeah.