The Supreme Court may opt to take action quickly, after exploring the constitutional right of citizenship at birth at a historic hearing Thursday.  The Justices were keenly interested and seemed eager to act swiftly during a public session lasting more than twice as long as scheduled.

Although various ideas and approaches were floated by the Justices and by the three lawyers who took turns at the lectern, the dominant sentiment among the Justices themselves was to find a prompt way to rule on the Trump Administration’s controversial plan to narrow birthright citizenship.  The plan would take that right away from babies born to parents illegally or only temporarily in this country.

As one of the lawyers put it Thursday, the constitutionality of the plan was “the elephant in the room,” even though it is not technically before the Court as of now.

Among the actions that the Court might take, if it wants to confront the constitutional issue now, are these:

• Order the lawyers to file new written briefs, to explore the constitutionality of the Trump plan, a move that would at least hint that the Justices could provide a final answer on that historic point within the next few weeks.
• Turn the government’s appeal in three cases into a single new appeal, focusing on alternative ways to approach the constitutional question – a move that might stretch out the Court’s review of the controversy, maybe for months.

There was some sentiment at the hearing for another approach: returning the controversy to lower courts, in essence to start over with a different legal procedure.  That was an idea the Trump Administration’s lawyer showed some interest in.  Most Justices, though, appeared to be concerned that it would take too long, and might not be workable.

The Court found itself with the puzzling situation that, in rushing this dispute to the Court for review, the Administration had focused only on what remedy lower courts should have the power to impose – if they found the plan likely to violate the Constitution’s 14^th Amendment guarantee of citizenship at birth.

It chose to appeal on that point because several of the current Justices have expressed deep worry that some lower courts for years have been issuing sweeping, nationwide orders against government action on a wide array of policies, rather than confining remedies to just those people or organizations who had sued.  That, it seemed, was the government’s view of the issue on which it most likely could win at the Court in the fight over birthright citizenship.

The Administration deliberately avoided asking the Court to judge the constitutionality of the Trump plan, on the theory that if the Court were now to pare down the remedies judges could impose, the government could continue to enforce the new plan in parts of the country while the constitutional dispute continued to play out in lower courts over the next few years, slowly making its way back to the Supreme Court.

But that strategy on Thursday ran into firm opposition from the Court’s three liberal Justices, who sometimes expressed deep skepticism about the plan’s legality and who seemed most eager to confront the constitutional question.  They appeared to have drawn some support from a few of the more conservative members of the Court.

The most conservative of the Justices, however, seemed to be leaning toward the Administration idea that lower courts had gone too far in imposing sweeping bans  on enforcing the Trump plan.  But the Administration lawyer, while sometimes seeming to embrace the plan for the dispute to start over in lower courts, would not commit to actually supporting that approach even if it were to be the alternative the Court chose.

Every lower court federal judge who so far has issued a temporary ruling on the Trump plan has banned it everywhere in the nation, after a tentative finding that it not only violated the 14^th Amendment but a string of Supreme Court precedents on the issue, going back to 1898.

It probably would take a majority of five to take action that would set up a prompt constitutional decision, and it definitely would require five Justices to support the actual ruling on the point.

The Court is now in the final six weeks of its annual term, and it would add a significant chore to decide an important constitutional question at this late date.  But that looked Thursday like a very real possibility.

If the Court were to strike down the Trump plan, that would be the end of the controversy, and the dispute over broad remedies in the federal courts would have to await a different dispute before the Court in the future.