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Preliminary nationwide injunctions were issued in three cases in early 2025 with respect to the Trump executive order on birthright citizenship: Trump V. Washington, Trump v. Casa, Inc., and Trump v. New Jersey.

On March 13, 2025, the government filed with the Supreme Court an application for a partial stay of the injunction issued in the Casa case, albeit with an acknowledgment that a decision on the issue of a nationwide injunction in that case also would apply to the other two cases. The case was assigned Docket No. 25-113. The Court's decision, issued on June 27, 2025, granted the partial stay. It expressly disclaimed going any further, with both the majority and dissents acknowledging that no petition for certiorari had yet been filed, not surprisingly since the merits of the legality of the executive order was still pending in the district courts.

It was only on September 26, 2025, after yet another district court, in another case brought by another plaintiff -- the District of New Hampshire, with "Barbara" as the representative of a class action -- had issued a preliminary injunction that Trump filed a petition for certiorari before judgment -- that is before a ruling by the First Circuit on a challenge to the New Hampshire District Court case. An identical, simultaneous petition for cert was filed with respect to the District of Washington case, which had been affirmed on remand by the Ninth Circuit in July 2025. These two cases were assigned docket numbers 25-365 and 25-364.

These two petitions for certiorari, effectively consolidated as one, were presented to the Court for consideration in conference on December 1. That is the first, and only time, that the Court considered a petition for certiorari on the decisions on the underlying merits issue relating to the legality of the executive order. That petition was granted today.

It is not a procedural step related to the June ruling. It is a ruling in a different case on a different issue. The three liberal justices dissented from the order on the nationwide injunction. At the time they made it clear that they believed that the executive order was unconstitutional. But they also expressed concern that the issue might never end up being brought to the Supreme Court depending on the outcome in the lower courts. In effect, they essentially challenged the government to file a petition for cert if, as they expected would be the case, the lower courts ruled that the executive order was unconstitutional. Thus, while I think that they still adhere to the view that the lower court decisions were correct, the fact that they did not use the occasion of the grant of certiorari to argue that the Court shouldn't take up the case is interesting/