9th Circuit judge invokes Antonin Scalia while ripping into DOJ lawyer during oral arguments in birthright citizenship
Source: Law & Crime
Jun 5th, 2025, 5:35 pm
The late U.S. Supreme Court Justice Antonin Scalia was used as a cudgel against the Trump administration by a skeptical appellate court judge during oral arguments in a case about President Donald Trump‘s efforts to rewrite birthright citizenship on Wednesday. Arguing before a three-judge panel on the U.S. Court of Appeals for the 9th Circuit, U.S. Department of Justice lawyer Eric McArthur was often subject to audibly askance questioning during the session by U.S. Circuit Judge Ronald M. Gould, a Bill Clinton appointee.
But it was another Clinton appointee, U.S. Circuit Judge Michael Daly Hawkins, who brought up Scalia, widely considered the forebear of textualist jurisprudence and the modern day conservative legal movement. And Hawkins was less aggressive — even deferential and apologetic — when striking the blow late in the session as the judges quizzed the DOJ lawyer about constitutional interpretation.
“Forgive me if this appears to be a bit unfair,” the judge began. “I’d be interested in your perspective on this,” Hawkins went on. “You clerked at the U.S. Supreme Court, correct?” The DOJ attorney answered in the affirmative, adding: “Years ago.” “And when you were clerking, was Justice Scalia still on the court?” the judge continued. “He was,” McArthur answered. The judge then went in for the aforementioned blow. “What do you think he would say about looking beyond the mere words of the amendment?” Hawkins asked. The government lawyer gave a reply hearkening back to his early arguments, saying: “I think Justice Scalia would be very open to looking at all of the historical evidence that tells us how those words were understood at the time.”
Hawkins apparent point in trying to needle McArthur with Scalia’s commitment to looking to the plain text of any given legal document — at first, at least; often above all else — had to do with the government’s insistence that more than the text of the 14th Amendment is necessary to understand the grant of birthright citizenship. To hear the government tell it, courts should have to read in the notion that “domicile” is required for the parents of those granted birthright citizenship. In one of their reply briefs, government lawyers described domicile as meaning “citizens and aliens lawfully” in the country.
Read more: https://lawandcrime.com/high-profile/beyond-the-mere-words-9th-circuit-judge-invokes-antonin-scalia-while-ripping-into-doj-lawyer-during-oral-arguments-in-birthright-citizenship-case/
Full headline: ‘Beyond the mere words’: 9th Circuit judge invokes Antonin Scalia while ripping into DOJ lawyer during oral arguments in birthright citizenship case
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