Don't Applaud Supreme Court Conservatives For Doing Trump Special Favors
It's hard to view the Court's latest 6-3 ruling as anything other than a politically-motivated gift.
In Friday’s momentous Trump v. CASA, Inc. decision, the Supreme Court held that a federal-court injunction against a government policy must not be broader than necessary to give “complete relief” to the particular plaintiff who brought the suit. That ruling largely sounds the death knell for what we’ve come to call the “nationwide injunction”—an order by a single district judge that prohibits the government from implementing a challenged policy against anyone across the country, whether they joined the suit or not.
Many people have responded to CASA by arguing over whether nationwide injunctions are good or bad. The dissenting justices even recognized that such orders are not always appropriate, and might even be properly limited to rare cases. But taking the nationwide injunction off the table, they thought, was a judicial “abdicat[ion].” In her own dissent, Justice Ketanji Brown Jackson called the Court’s ruling “an existential threat to the rule of law.” Justice Amy Coney Barrett’s majority opinion was at pains to deny that the decision threatened the rule of law, and outside voices, from both the right and the moderate left, have chimed in to support her.
They argue the new limitations on nationwide injunctions appropriately confine judges to the role of deciding disputes between particular parties, and that those limitations prevent opportunistic, politically motivated litigants from stymieing important government initiatives–whether those initiatives, and those litigants, come from the left or the right. They also note that the Court left open the possibility that nationwide orders restraining unlawful government conduct might survive in some instances: where even the plaintiff can’t get full relief without stopping the challenged conduct altogether; where a court certifies a nationwide class action, so the individual plaintiff is understood to represent everybody similarly affected by the challenged policy; or perhaps where the plaintiffs seek to “vacate” some discrete action of a federal agency under the Administrative Procedure Act.
These are valid caveats. But even if I saw perfectly eye-to-eye with the six conservative justices on the narrow question of injunctions, I could not defend their conduct in this case. To the contrary, I would still criticize it severely. It seems to confirm the suspicions of some of their staunchest critics: in particular, that they are guided by ideological and partisan objectives, which become evident on close analysis of the cases they choose to hear, when they choose to hear them, and how they fashion their opinions.
I’ll admit to being pretty ambivalent about the nationwide injunction question, per se. As a former government lawyer (during the Biden administration, I served as General Counsel to the Office of Management and Budget and then to the Department of Health and Human Services), I had a front-row seat to myriad abuses of the nationwide injunction. Suits seeking and obtaining nationwide orders—often from judges hand-picked by ideological plaintiffs for their hostility to the administration—created enormous and unjustified obstacles to governance. It’s notable, but not surprising, that the Biden administration itself asked the Court to decide whether nationwide injunctions are lawful, only for the Court to decline the request.
On the other hand, Justice Elena Kagan made a compelling point in the CASA oral argument, one echoed in Justice Sonia Sotomayor’s dissent: Absent the prospect of a nationwide injunction, the government can adopt a blatantly unconstitutional policy, get sued in a district court and lose, then stop enforcing the policy against the plaintiff who won, but keep enforcing the policy against everyone else. The government doesn’t have to appeal the district court’s judgment to a higher court, and the plaintiff, who got everything she could ask for, can’t appeal. If the government keeps enforcing the unconstitutional policy against other folks, maybe someone else will sue and win, but then the government will just stop enforcing the policy against that plaintiff as well, but keep enforcing it against everyone who hasn’t sued. Rinse and repeat. Without a nationwide injunction, or the prospect that a case will be appealed to the Supreme Court, the government will keep getting sued, keep losing, and keep enforcing an unconstitutional policy against anyone who has not yet had the wherewithal to come into court.
The ideological stakes of the nationwide injunction issue are not as clear or as one-sided as many have suggested. And there is a plausible argument for rejecting nationwide injunctions, particularly if there remains room for nationwide relief in appropriately certified class actions.
But that brings us back to the larger context: The Court has had many opportunities—both in the Biden administration and in the Trump administration—to tell lower courts they couldn't issue nationwide injunctions. The Court could have chosen any of the many cases in which plaintiffs had obtained nationwide relief against the policies of either administration.
Why wait until this time, in this case? CASA, in particular, involves an effort by President Trump to override the guarantee of birthright citizenship—a guarantee that is fundamental to the amendments that transformed our Constitution during Reconstruction. Trump’s action directly conflicts with the text of the fourteenth amendment, the consistent understanding of that text since its adoption, and the views of virtually all scholars. When a few Trump-friendly scholars attempted on the fly to construct a post hoc constitutional argument for the President’s executive order, they were subject to withering (and overwhelmingly persuasive) criticism. And every lower court to have decided the question has concluded that Trump is wrong—that birthright citizenship is enshrined in the Constitution.
Now maybe a majority of the justices in fact agree with Trump on birthright citizenship. I tend to doubt that they do, given the overwhelming weight of the arguments against him. I have very little confidence in this Court, but most justices still like to think of themselves as judges rather than foot-soldiers in a political movement. This is one of those cases where it would be difficult for most judges—even very conservative ones—to look themselves in the mirror the next day if they decided in favor of Trump on the constitutional question.
But if a majority of the Court believes that the longstanding view of virtually all legal interpreters is wrong, and that Trump’s executive order was constitutional, they should say so. Instead, they rewarded the Trump administration’s gamesmanship.
When the administration took these birthright citizenship cases to the Supreme Court, its lawyers did not challenge the lower court judges who all believe the executive order violates the fourteenth amendment—probably because they recognized that their argument was a loser even in a very right-wing Court that has delivered Trump some signature victories. They instead asked the Court to decide only the question of whether the nationwide remedy ordered by the lower courts went too far.
The Court did not have to accept that framing. Indeed, the justices often choose to decide a different question than the one presented by the appealing party. The justices could have agreed to take up the Trump administration’s request for a stay of the lower-court injunctions against the executive order, but they could have asked the parties to brief and argue the underlying merits of the constitutional dispute about birthright citizenship. There would be nothing improper about that. To the contrary, the Court has repeatedly said that the underlying legal merits of a case are crucial to determining whether a preliminary injunction or a stay is appropriate.
If the Court had decided the merits of the constitutional question, and ruled in accord with the longstanding interpretation of the fourteenth amendment, the nationwide injunction issue would have been practically irrelevant. The Supreme Court would have settled the issue.
If, by contrast, the Court had decided the merits of the constitutional question, and ruled against the longstanding interpretation of the fourteenth amendment, that would have been egregiously wrong in my view. But it, too, would have made the nationwide injunction issue irrelevant (because there would be nothing to enjoin). And by making such a ruling out in the open, the Court would have subjected itself to immense public criticism—something that would create an organizing and mobilizing opportunity for those challenging Trump’s agenda.
I doubt the justices would have exposed themselves in that way, on the basis of an argument broadly rejected across the legal community. But the Court did not ask the parties to brief and argue the constitutional issue. It resolved only the question Trump wanted them to resolve, in exactly the way Trump wanted them to resolve it, empowering Trump to continue enforcing his executive order against people who haven't sued yet. That's just indefensible manipulation, particularly given the powerful of the arguments that the executive order is unconstitutional. It’s hard to read it as anything other than a special favor or concession, and to an administration that has been extraordinarily contemptuous of the judiciary.
Whatever you think about nationwide injunctions, you should be upset that the Court chose this case to announce its new rule. And you should be upset that the Court has encouraged—indeed, played a central role in—the Trump administration's shameless efforts at manipulation.
There is a second reason to fault the Court’s CASA opinion: The Court reached its conclusion rejecting nationwide injunctions on the basis of a method of analysis that is, to use a technical term, absurd.
Again, viewed in isolation, the nationwide injunction question is a hard one. But whatever the right answer is, do you think we’ll find it by asking how similar today’s nationwide injunction is to some kind of order issued by courts in the early United States or in England's High Court of Chancery before the American Revolution? Because that’s what the majority did. Barrett devoted nearly three pages to discussing the boundaries of the “bill of peace” issued by seventeenth century English courts. But when it came to what she called “the policy pros and cons”—whether nationwide injunctions are good or bad for the rule of law and the administration of the judicial system—she dismissed them as “beside the point.”
Why did Barrett et al take this weird historical approach? Because, they said, Congress required them to. Really? That seems like an odd thing for Congress to do. Why would Congress care about historical analogies so much that arguments about the rule of law and judicial administration are “beside the point”?
Well, Barrett said, the power of the federal courts to issue injunctions comes from a statute that gave them jurisdiction over "suits ... in equity." (“Equity” basically means a case that seeks to order the defendant to do something other than pay damages to the plaintiff; the concept actually gets a lot more complicated, but that quick-and-dirty definition will do for these purposes.) And that statute was adopted in 1789. So we need to ask what “equity” meant in 1789, at the start of our constitutional Republic. And that means asking whether the order the plaintiff is seeking today is analogous to an order that a court in equity (also called a chancery court) would have issued in the years leading up to our Constitution.
To be fair to Barrett, the Court has applied that historical-analogical approach in other cases; she didn’t make it up. But whatever the justification for originalism generally in constitutional or statutory law, I can think of no good justification for confining the two words "in equity" to rigid analogies to what existed in 1789—except perhaps to reach the conclusion they knew Trump wanted. That's particularly true because equitable remedies have always been understood as marked by flexibility to meet the nature of the issue and the harm. What the Court did (which, again, isn’t totally new) is mindless originalism on steroids. The “policy” arguments, which the Court pooh-poohed, seem to me a far more appropriate way of deciding the nationwide injunction question.
Again, I’m pretty ambivalent about nationwide injunctions. But I’m not at all ambivalent about what the Court did last week. After passing up numerous opportunities to confront the nationwide-injunction question, it chose to reward the Trump administration’s manipulation of the docket and decide that question in a context that will only delay relief from a blatantly unconstitutional—even anti-constitutional—executive order. And it purported to decide the issue on the basis of mindless analogies to seventeenth century cases, rather than the arguments that really matter.
That tells us a lot about whose interests the justices intended to serve.
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Thank you. Understanding this ruling and its implications is rather overwhelming. I was glad to read your discussion.
This article explains clearly what happened in our supreme court’s ruling, for those of us who have not studied constitutional law. Justice was not an issue for them.