Trump v. CASA and the case that immediately followed, Trump v. Barbara, present an extraordinary sequence.

In CASA, the Supreme Court expressly declined to decide whether President Trump’s birthright-citizenship Executive Order was constitutional. Yet Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, announced a categorical position on that unresolved question. Their dissent then directly addressed the parents capable of bringing the issue back to court, identified the kind of action they should file, stated that they should file promptly, specified the temporary relief they should request, and called for expedited consideration that would permit prompt Supreme Court review. Trump v. CASA, Inc., 606 U.S. 831, 859–60 (2025); id. at 880–82, 920–21 (Sotomayor, J., dissenting).

Plaintiffs immediately pursued substantially the same procedural course. Within hours of the CASA decision, the plaintiffs in Barbara filed a new action and sought certification of a nationwide class. That action became Trump v. Barbara. Justices Sotomayor, Kagan, and Jackson later participated in deciding the merits case and voted consistently with the constitutional conclusion they had announced before receiving merits briefing or hearing argument in Barbara. Petition for Writ of Certiorari Before Judgment app. 9a–11a, Trump v. Barbara, No. 25-365 (U.S. Sept. 26, 2025); Trump v. Barbara, No. 25-365, slip op. at 5 (U.S. June 30, 2026) (syllabus).

Prior judicial opinions ordinarily do not require recusal, and this argument does not allege private coordination or actual bias. The concern arises from the cumulative sequence: the Court expressly reserved the constitutional question; the dissent treated the answer as conclusively settled; the opinion provided concrete litigation guidance to an identifiable category of prospective litigants; and the Justices who joined it later adjudicated litigation that followed that guidance in material respects. Taken together, those circumstances present a serious appearance-of-impartiality question under 28 U.S.C. § 455(a) and support rehearing without their participation. See Liteky v. United States, 510 U.S. 540, 555 (1994); Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859–60, 864–65 (1988).

January 20, 2025: Executive Order 14160 issued

President Trump issued Executive Order 14160. It directed federal agencies not to recognize U.S. citizenship for certain children born in the United States after the Order’s 30-day implementation period when the mother was unlawfully or temporarily present and the father was neither a U.S. citizen nor a lawful permanent resident. Exec. Order No. 14,160, §§ 1–3, 90 Fed. Reg. 8449, 8449–50 (Jan. 29, 2025).

February 5, 2025: Maryland court entered a nationwide preliminary injunction

The U.S. District Court for the District of Maryland entered a preliminary injunction barring implementation and enforcement of the Executive Order throughout the United States while the litigation proceeded. CASA, Inc. v. Trump, 763 F. Supp. 3d 723, 746 (D. Md. 2025).

February 6, 2025: Washington court entered a nationwide preliminary injunction

The U.S. District Court for the Western District of Washington entered a preliminary injunction blocking enforcement of the Executive Order nationwide. Washington v. Trump, 765 F. Supp. 3d 1142, 1154 (W.D. Wash. 2025).

February 13, 2025: Massachusetts court entered a nationwide preliminary injunction

The U.S. District Court for the District of Massachusetts entered a preliminary injunction preventing nationwide enforcement of the Executive Order. Doe v. Trump, 766 F. Supp. 3d 266, 290 (D. Mass. 2025).

March 13, 2025: Government sought emergency Supreme Court relief

The federal government filed three applications asking the Supreme Court to narrow the injunctions. It did not ask the Court to decide whether the Executive Order was constitutional. Application for Partial Stay at 1–3, Trump v. CASA, Inc., Nos. 24A884, 24A885 & 24A886 (U.S. Mar. 13, 2025); Supreme Court Docket, Trump v. CASA, Inc., No. 24A884 (U.S.).

April 17, 2025: Supreme Court consolidated the applications and ordered argument

The Supreme Court consolidated the three applications, deferred their consideration until oral argument, and scheduled argument for May 15, 2025. Order, Trump v. CASA, Inc., Nos. 24A884, 24A885 & 24A886 (U.S. Apr. 17, 2025).

May 15, 2025: Supreme Court heard oral argument in CASA

The Supreme Court heard oral argument on whether the nationwide injunctions exceeded the federal courts’ remedial authority. Supreme Court Docket, Trump v. CASA, Inc., No. 24A884 (U.S.).

June 27, 2025: Supreme Court decided Trump v. CASA

The Supreme Court limited the use of universal injunctions and expressly declined to decide whether the Executive Order was constitutional. Trump v. CASA, Inc., 606 U.S. 831, 835–36, 859–60 (2025).

In dissent, Justice Sotomayor, joined by Justices Kagan and Jackson, treated the constitutional answer as settled, advised affected parents to file prompt class actions, identified the temporary relief they should seek, and urged expedited proceedings. Id. at 880–82, 920–21 (Sotomayor, J., dissenting).

June 27, 2025: Plaintiffs filed Barbara v. Trump

Within hours of the CASA decision, affected parents and children initiated Barbara v. Trump. They immediately sought certification of a class covering affected children and their parents, a classwide preliminary injunction, and an expedited briefing schedule. Barbara v. Trump, 790 F. Supp. 3d 80, 86–87 (D.N.H. 2025).

July 10, 2025: Nationwide child class certified

The New Hampshire district court provisionally certified a nationwide class consisting of children covered by the Executive Order and entered a classwide preliminary injunction. The court narrowed the proposed class to exclude the parents. Id. at 90–93, 101–02, 105–06.

September 26, 2025: Government sought Supreme Court review before judgment

The government filed a petition asking the Supreme Court to hear Barbara before the First Circuit issued a decision. Petition for Writ of Certiorari Before Judgment, Trump v. Barbara, No. 25-365 (U.S. Sept. 26, 2025).

December 1, 2025: Petition redistributed for conference

The petition was redistributed for consideration at the Supreme Court’s December 5 conference. Supreme Court Docket, Trump v. Barbara, No. 25-365 (U.S.).

December 5, 2025: Supreme Court granted review

The Supreme Court granted certiorari before judgment without waiting for the First Circuit to decide the government’s appeal. Id..

January 30, 2026: Supreme Court scheduled oral argument

The Court scheduled Trump v. Barbara for oral argument on April 1, 2026. Id..

April 1, 2026: Supreme Court heard oral argument in Barbara

The Supreme Court heard oral argument on whether the Constitution and federal law guarantee citizenship at birth to the children covered by the Executive Order. Id..

June 30, 2026: Supreme Court decided Trump v. Barbara

The Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment. Chief Justice Roberts wrote the majority opinion, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. Trump v. Barbara, No. 25-365, slip op. at 1, 26 (U.S. June 30, 2026); id. at 5 (syllabus).

The government came to the Supreme Court seeking partial stays of injunctions that protected everyone affected by the Executive Order, including nonparties. The question was whether federal courts had authority to issue such universal injunctions. The government’s applications did not present the underlying constitutional question, and the Court expressly declined to decide it. CASA, 606 U.S. at 835–36, 859–60.

The Court stated that the “birthright citizenship issue is not before us” and that it would “take no position” on the dissent’s constitutional analysis. Id. at 859–60.

Justice Kavanaugh wrote a separate concurrence, joined by no other Justice. Like the majority, he did not announce how he believed the constitutional question should ultimately be resolved. Instead, he discussed the institutional concern that an early emergency ruling might prematurely commit the Court to a later merits position. He explained that judges must remain willing to reconsider an earlier assessment after receiving additional information, briefing, and argument. Id. at 877–78 (Kavanaugh, J., concurring).

In other words, both the majority and Justice Kavanaugh deliberately reserved the constitutional question for a future merits case. The majority expressly declined to decide it, and Kavanaugh separately emphasized that judges should remain open to changing an earlier assessment after receiving fuller briefing, argument, and consideration. [Id. at 859–60]; id. at 877–78 (Kavanaugh, J., concurring).

Justice Sotomayor took a materially different approach.

She began her analysis by declaring that “every conceivable source of law confirms” the constitutional result she favored. She described birthright citizenship as one of the few constitutional questions that could be resolved from the constitutional text alone and portrayed the historical, judicial, legislative, and executive record as supporting the same conclusion. Justices Kagan and Jackson joined her opinion. Id. at 880–82 (Sotomayor, J., dissenting).

The concern is not simply that she reached a strong legal conclusion. Judges routinely do so. Rather, her dissent repeatedly presented contested historical and constitutional propositions as conclusively settled before the Court had received merits briefing or heard merits argument on the question. The meaning of English subjectship, allegiance, domicile, the phrase “subject to the jurisdiction,” the Civil Rights Act of 1866, and the scope of United States v. Wong Kim Ark later produced extensive disagreement among the opinions in Barbara. Trump v. Barbara, No. 25-365 (U.S. June 30, 2026).

That language could reasonably be understood as publicly committing the three dissenting Justices to the conclusion that the constitutional question was settled before the Court accepted a case presenting that question for decision. It does not prove that later briefing and argument were ignored. But it could cause a reasonable observer to question whether the parties retained a meaningful opportunity to persuade those Justices when the issue was finally presented to the Court. See 28 U.S.C. § 455(a); Code of Conduct for Justices of the Supreme Court of the United States, Canon 3B(2) (2023).

The majority explained that Rule 23 class actions remained the established mechanism for obtaining relief on behalf of a class. Justice Kavanaugh likewise discussed class actions in general procedural terms. Neither addressed a particular group of prospective litigants or recommended that anyone initiate new litigation. CASA, 606 U.S. at 849–50; id. at 869–70 (Kavanaugh, J., concurring).

Justice Sotomayor went further. Her dissent directly addressed the parents of children covered by the Order and stated that they would be “well advised to file promptly” class-action suits. It identified the temporary relief they should request and called on lower courts to proceed quickly so that the resulting cases could return promptly to the Supreme Court. Justices Kagan and Jackson joined that guidance as part of the dissent. Id. at 920–21 (Sotomayor, J., dissenting).

This was concrete litigation guidance:

Who should act: Parents of children covered by the Order
What they should file: Class-action lawsuits
When they should file: Promptly
What they should request: Temporary classwide injunctive relief
What courts should do: Proceed swiftly and facilitate prompt Supreme Court review

Id..

Justice Sotomayor directly addressed the identifiable group capable of initiating litigation on behalf of the children affected by the Executive Order: their parents. She advised “the parents of children covered by the Citizenship Order” to file prompt class actions and seek temporary classwide relief. Id. at 920–21. Within hours of the CASA decision, parents of affected children did exactly that in Barbara. The district court later certified a nationwide class consisting of the affected children and entered classwide relief protecting them. See Petition for Writ of Certiorari Before Judgment app. 4a–5a, 8a–11a, 40a–41a, Trump v. Barbara, No. 25-365 (U.S. Sept. 26, 2025); Barbara v. Trump, 790 F. Supp. 3d 80, 86–87, 90–93, 101–02, 105–06 (D.N.H. 2025).

The appearance concern does not depend on proving that the plaintiffs relied on the dissent or filed because of it. It arises from the objective sequence: the dissent directly addressed an identifiable category of prospective litigants, recommended a specific procedural route, and the ensuing litigation followed that route in material respects.

When Barbara reached the Supreme Court, the constitutional question reserved in CASA was finally before it. Trump v. Barbara, No. 25-365, slip op. at 1 (U.S. June 30, 2026).

Justices Sotomayor, Kagan, and Jackson participated. All three voted for the constitutional result they had previously endorsed in the CASA dissent. Justice Sotomayor also joined the introduction and Part I of Justice Jackson’s separate concurrence. Id. at 5 (syllabus).

The full sequence therefore matters:

1. The constitutional question was not before the Court for decision in CASA.
2. The majority described the dissent’s merits analysis as premature.
3. Justice Sotomayor, joined by Justices Kagan and Jackson, nevertheless announced a categorical constitutional answer.
4. The dissent addressed affected parents and recommended how and when they should pursue class litigation.
5. Plaintiffs immediately pursued substantially the same litigation route.
6. One resulting action became Trump v. Barbara.
7. The same three Justices participated and voted consistently with their previously announced conclusion.

CASA, 606 U.S. at 859–60; id. at 880–82, 920–21 (Sotomayor, J., dissenting); Barbara, slip op. at 5 (syllabus); Supreme Court Docket, Trump v. Barbara, No. 25-365 (U.S.).

The concern is not that the dissent discussed class actions as a legal option. The majority and Justice Kavanaugh did that too. The distinctive feature is that the dissent directly addressed a defined category of prospective litigants, advised them to file promptly, identified the interim relief they should seek, urged lower courts to expedite the litigation, and simultaneously declared the unresolved merits question conclusively answered.

Section 455(a) provides that any federal Justice or judge must disqualify themself in a proceeding in which their impartiality “might reasonably be questioned.” The statute focuses on reasonable appearances, not solely on proof of actual bias. 28 U.S.C. § 455(a), (d)(1); see Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 859–60, 864–65 (1988).

The Supreme Court’s Code of Conduct likewise directs a Justice to avoid impropriety and its appearance and to act in a manner that promotes public confidence in judicial integrity and impartiality. Its recusal provision asks whether an unbiased and reasonable person, aware of all relevant circumstances, would doubt the Justice’s ability to perform judicial duties fairly. Code of Conduct for Justices of the Supreme Court of the United States, Canons 2A, 3B(2) (2023).

Prior judicial opinions ordinarily do not require recusal. Liteky v. United States teaches that judicial rulings alone almost never provide a valid basis for disqualification. Judges necessarily develop and express legal views while deciding cases, and adherence to those views in later litigation does not ordinarily establish bias. Liteky v. United States, 510 U.S. 540, 555 (1994).

Liteky, however, did not address the particular combination presented here: a prior judicial opinion addressing a constitutional issue the Court expressly declined to decide, concrete procedural guidance directed to identifiable prospective litigants, and later participation in litigation that followed that guidance. That doctrinal limitation should be acknowledged.

The argument here therefore does not rest on a prior legal opinion alone. It rests on the combination of:

• announcing a categorical answer to a constitutional question the Court expressly declined to decide;
• describing that answer as effectively beyond dispute;
• addressing an identifiable category of people capable of initiating the future litigation;
• specifying the procedural vehicle, timing, requested relief, and need for expedited review; and
• later adjudicating litigation that followed that course in material respects.

This argument does not require an allegation of secret coordination, private communications, or actual bias. Section 455(a) addresses circumstances in which impartiality might reasonably be questioned, and the Supreme Court has recognized that the statute protects public confidence in the judicial process. 28 U.S.C. § 455(a); Liljeberg, 486 U.S. at 859–60, 864–65.

A fully informed observer could therefore question whether the later merits briefing and argument occurred only after three participating Justices had publicly treated the constitutional answer as settled in a dissent addressing an issue the majority said was not before the Court, while also joining guidance describing how the affected population should bring the issue back before them.

A constitutional ruling determining citizenship at birth must emerge from a process that is not only impartial but visibly impartial. See 28 U.S.C. § 455(a); Code of Conduct for Justices of the Supreme Court of the United States, Canons 1, 2A, 3B(2) (2023).

The available procedural mechanism is a timely petition for rehearing under Supreme Court Rule 44.1, accompanied by a request that Justices Sotomayor, Kagan, and Jackson not participate. Rule 44.1 requires the petition to state its grounds briefly and distinctly and to include a certification that it is presented in good faith and not for delay. Sup. Ct. R. 44.1.

Rule 44.1 does not contain Rule 44.2’s special limitation to intervening circumstances or substantial grounds not previously presented. Rule 44.2 applies to petitions seeking rehearing of orders denying certiorari or extraordinary writs, not to petitions seeking rehearing of merits judgments. A merits rehearing petition should nevertheless explain clearly why the participation issue and the cumulative sequence justify reconsideration of the judgment. Sup. Ct. R. 44.1–.2.

Rehearing would not punish the Justices for reaching a particular constitutional conclusion. Nor would it rest on the proposition that judges may never express legal views in prior opinions. It would respond to the unusual cumulative appearance created when the same Justices who treated an expressly reserved issue as conclusively resolved also joined concrete guidance to prospective litigants and then decided litigation that followed that guidance in material respects.

At the Supreme Court, individual Justices, rather than the Court as a whole, decide recusal issues. That structure makes public confidence in the fairness and visible impartiality of the Court’s process especially important. Code of Conduct for Justices of the Supreme Court of the United States, Canon 3 cmt. at 11 (2023); see also Cheney v. U.S. Dist. Court for D.C., 540 U.S. 1217 (2004).

Supreme Court Rule 44.1 permits a petition for rehearing within 25 days after entry of a merits judgment unless the Court or a Justice shortens or extends that period. Rule 30.1 excludes the day of the judgment from the calculation and extends a deadline that falls on a Saturday, Sunday, federal holiday, or day the Court is closed to the next eligible day. Because the twenty-fifth day after June 30, 2026, is Saturday, July 25, the ordinary filing deadline is Monday, July 27, 2026. A petition is not orally argued, and rehearing cannot be granted except by a majority of the Court at the instance of a Justice who concurred in the judgment. Sup. Ct. R. 30.1, 44.1.

Because Barbara is a Supreme Court judgment, Rule 44 supplies the Court’s own procedure for reconsidering that judgment. The Court’s institutional authority depends heavily on public confidence that cases are decided with an open mind. Whatever the ultimate constitutional answer, the sequence from CASA to Barbara creates a serious and unusual appearance concern: the dissent publicly announced its answer, directly addressed affected parents, identified a procedural route by which the issue could return to the Court, and was joined by Justices who later participated in deciding the resulting case.

For that reason, Trump v. Barbara warrants rehearing without the participation of Justices Sotomayor, Kagan, and Jackson.