What The Hell America!

If they prevailed, Kagan explained, that could lead to a scenario where the Supreme Court never gets to review the merits at all. “If you win this challenge and say there is no nationwide injunction and it all has to be through individual cases, then I can’t see how an individual who is not, you know, being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us,” she told Sauer.

Sauer replied that other individuals could ask a federal district court to intervene. “Yeah, and then they win, and, again, I mean, you need somebody to lose, but nobody’s going to lose in this case,” she said, to laughter in the courtroom. “You’re going to have individual by individual by individual [cases], and all of those individuals are going to win, and the ones who can’t afford to go to court, they’re the ones who are going to lose.”

After some dissembling by Sauer, Kagan stated her point more directly. “The real brunt of my question is, in a case like this, the government has no incentive to bring this case to the Supreme Court because it’s not really losing anything,” she explained. “It’s losing a lot of individual cases, which still allow it to enforce its EO against the vast majority of people to whom it applies.”