Much like its opinion exactly a year ago in Trump v. United States, the Supreme Court’s opinion in Trump v. CASA dramatically limiting federal courts’ ability to issue nationwide injunctions will result in more power and less accountability for the president. The Supreme Court has now relieved President Trump of one of the key constraints he has faced in his more than five months in office.
But the power transfer that will result from this opinion is not only from the judiciary to the president, but also within the judiciary. That’s because the Supreme Court’s conservative majority also suggested that the Supreme Court, alone among the federal courts, can and will continue to provide uniform national answers to pressing legal questions, on both a preliminary basis and a final basis.
The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.
The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its rhetoric about the court’s conception of its own role, which is neither neutral nor humble.
In Trump v. CASA, the Supreme Court could have definitively decided that President Trump’s executive order purporting to end birthright citizenship is flagrantly unconstitutional and may not be enforced. Instead, the court announced that it alone can decide such matters on a nationwide basis — and that it would not do so here.
In his concurrence, Justice Brett Kavanaugh underscored this point by emphasizing, in case anyone doubted it, that “this court, not the district courts or courts of appeals, will often still be the ultimate decision maker” on the legal status of statutes and executive actions.
So as the Supreme Court departed for its summer holiday, it sent the birthright citizenship cases back to the district courts with a directive to “move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport” with the court’s ruling and “otherwise comply with principles of equity.”
Both the general tenor of the opinion, and these instructions — to rapidly reconsider these cases in the context of an entirely new standard announced in an opinion that is far from clear — evinced a remarkable lack of respect for lower courts. And the decision comes at a time when district court judges have done more than any other constitutional player to maintain core constitutional protections. These are the same district judges who are facing unprecedented attacks online, threats to their safety and impeachment resolutions.
As Justice Ketanji Brown Jackson noted in her dissent: “Perhaps the degradation of our rule-of-law regime would happen anyway. But this court’s complicity in the creation of a culture of disdain for lower courts, their rulings and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.”
It is entirely possible, as some commentators have suggested, that lower courts in these cases will swiftly grant new injunctions, either to state plaintiffs or to newly certified class actions — and further, that courts may agree that awarding plaintiffs “complete relief” will necessarily involve barring the federal government from enforcing an illegal executive order as to anyone, either within a particular state or even nationally.
If that does happen quickly, and if the Supreme Court does not again step in to block the decisions of lower courts, the effect will be essentially indistinguishable from the nationwide injunctions at issue in this case.
But that will take time — it is by no means certain that it will occur before the expiration of the 30-day period after which the executive order is now slated to take effect. And it will require enormous litigation resources. In addition, the litigation could result in conflicting court orders that could allow the executive order to go into effect at least in some places — and its going into effect anywhere would create both practical and legal chaos.
And although the court ruled that the order would not take effect for 30 days, it also made clear that the administration could begin developing guidance now.
There is something deeply corrosive to the rule of law for the court — again, by its own choice — to invite executive-branch lawyers to begin devising such guidance for an executive order that is fundamentally incompatible with core constitutional principles, precedent and more than 150 years of practice. The Supreme Court could well have spared the legal system, injured parties and our constitutional culture all of this — and it made a considered choice not to.
It is impossible to miss the court’s shifting use of methodology in recent cases involving the president — President Trump in particular. Last summer’s decision in Trump v. United States was thoroughly functionalist. In that case, constitutional text, founding-era understandings, executive-branch practice and Supreme Court precedent all counseled strongly against a rule of immunity for ex-presidents. So the court disregarded such sources, relying almost entirely on pragmatic concerns about the impact on the presidency of allowing for prosecutions of ex-presidents.
Here, however, where there are pressing pragmatic concerns about the way eliminating nationwide injunctions would enable executive lawlessness, the court resorted to a particularly rigid form of historical inquiry. It asked whether nationwide injunctions look enough like the kinds of relief granted by England’s High Court of Chancery at the time of the adoption of the Judiciary Act of 1789 — and concluded that they do not.
A method of legal interpretation that relies on this kind of historical inquiry only when it will yield the answer it wants is clearly far more opportunistic than principled. It’s also worth noting that the method asks only about the courts, without taking into account the changes in executive-branch conduct that have caused courts to innovate in the forms of equitable relief they grant.
Justice Kavanaugh’s concurrence lets the methodological mask slip when it explains why the Supreme Court will continue to actively intercede in litigation regarding the lawfulness of executive action. He writes that “determining the nationally uniform interim legal status for several years of, say, the Clean Power Plan or Title IX regulations or mifepristone rules is a role that the American people appropriately expect this court — and not only the courts of appeals or district courts — to fulfill.”
The “expectations of the American people,” rather than 18th-century practice, justifies this vision of the Supreme Court’s role in reviewing executive action.
Justice Amy Coney Barrett’s majority opinion also engages with some contemporary developments when it decries the rise of the nationwide injunction, noting that “during the first 100 days of the second Trump administration district courts issued approximately 25 universal injunctions” and highlighting the increase this represents.
But here again the court refuses to acknowledge context. Consider how many executive orders the Trump administration issued in its first 100 days: 143, compared with 42 for Joe Biden, 33 in the first Trump term and 19 for Barack Obama.
Beyond pure volume, many of President Trump’s orders have been almost comically unlawful. The majority opinion fails to note any of this, instead suggesting that it is the change in lower court behavior that requires a course correction by the Supreme Court.
It seems clear that if a president issued an executive order seizing all citizens’ guns or prohibiting all religious worship, this Supreme Court would immediately take up the merits of that question and put an end to the executive action. It would not wait for class-action certification or scold lower courts about tailoring appropriate relief.
Its refusal to decide this case on the merits now, while sharply limiting the power of the lower federal courts and highlighting its own superiority, is just the latest development of an unbounded court.
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Kate Shaw is a contributing Opinion writer, a professor of law at the University of Pennsylvania Carey Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.
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