On Friday, the Supreme Court decided the birthright citizenship cases — except they aren’t really about birthright citizenship. In an executive order issued in January, President Trump wanted to redefine citizenship in the United States. The court’s decision in Trump v. CASA does not address that effort; it is rather about the scope of remedies given by the federal courts.
In the decision, a 6-3 majority of the court held that the federal courts have no authority to issue universal injunctions, which are court orders that control how the government acts toward everyone in the country, not just the parties in the case. The high court’s decision has the potential to reshape the relationship between the federal judiciary and the executive branch — and the court got it right.
In rejecting the practice of universal injunctions, the Supreme Court reaffirmed the proper role of the federal courts within our constitutional system.
What the justices got right was a shift in thinking about what Americans want our courts to do, and especially how they should operate in a democracy under pressure.
There has been a shift toward a new model of judicial interaction with the executive branch. This new model has been marked by broader remedies, faster timelines, fewer trials and less factual development — which is to say, less time devoted to discovery and oral argument in lower courts. It has also meant more extreme forum-shopping for favorable judges — when plaintiffs seek out a specific judge whom they wish to hear their case, presumably because of how they expect that judge to rule.
Removing universal injunctions does not change all of that — it is not like the last Jenga block that makes the tower fall. But the universal injunction has supported and intensified all those other developments. Removing it gives the courts a chance to reset, and to shift toward the more deliberative mode in which they do their best work.
Since 2015 and the meteoric rise of universal injunctions, Federal District Courts have stepped in to stop almost every major presidential initiative, from President Barack Obama’s DACA expansion (which has protected thousands of young immigrants from deportation) to President Trump’s travel ban, and from President Joe Biden’s student loan forgiveness to President Trump’s order purporting to revoke birthright citizenship.
In line with previous precedents, the court said that federal courts have the power to give traditional equitable remedies, which emphasize fairness and justice for the parties to the case and are based on the practice of the English Court of Chancery. The universal injunction’s relative novelty — it was invented in the 20th century, and took a star turn only in the 21st — means that it lies outside of the powers of the federal courts.
In a powerful and comprehensive opinion for the majority, Justice Amy Coney Barrett showed how dissonant the universal injunction is with the traditional practice of the federal courts.
Even though the court was decisive in rejecting the universal injunction, it left open many other questions. These include when states and organizations can sue on behalf of other people, whether a federal statute called the Administrative Procedure Act allows federal courts to rule on regulations set by federal agencies for the country, and when courts should give broad injunctions to afford an individual or state plaintiff “complete relief.”
Another important question left open is how easy or hard it will be for people challenging executive orders to bring class actions, which allow an individual plaintiff to represent many other people in a case. Class actions also offer sweeping relief.
How the court decides these questions in the future will determine the decision’s practical effect.
What is not going to change because of this decision is birthright citizenship. The court stated that the executive order would not go into effect for 30 days, which gives plenty of time for the challengers to switch from universal injunctions to other avenues like class actions. I expect the courts to continue to reject in case after case the government’s arguments for the birthright citizenship order. The likely result is that President Trump’s unconstitutional executive order on birthright citizenship will never go into effect.
But something else is at stake — competing visions for the role of the courts in our constitutional system. One vision is to say that the job of every judge is to declare the law and make sure everyone, including the president, follows it all the time. There’s a lot to be said for following the law, and in our constitutional system, no one is above it.
Another vision is to say that the chief job of the courts is to decide cases. Resolving disputes is what gives the courts their legitimacy: It is the core of the judicial power given by the Constitution, and robust judicial power is tolerable in a democracy precisely because the judges stay in their lane. A judge’s job is not to say, “Someone is wrong on the internet” and then do something about it. Instead, her job is to decide the case before her fearlessly, according to the existing law, and to give the proper remedy to whichever party wins.
These two visions were on offer in the opinions in Trump v. CASA, with Justice Ketanji Brown Jackson offering the first vision in dissent, and Justice Barrett offering the second vision for the majority.
We live in a time of great pressure on our constitutional system, with a president who thinks he can make laws (he can’t), suspend laws (he can’t) and punish enemies without a trial (he can’t). It is precisely at this time that the first vision is most attractive — and the second vision is most essential.
The courts must defend constitutional rights and liberties. But they must defend them as courts defend them: deciding cases for the parties and giving remedies to the parties. That function is what gives courts their constitutional legitimacy in a democratic society.
It will mean that courts don’t have the power to remedy every wrong. And it will mean that a patchwork of rulings sometimes persists. But to remedy every wrong immediately and everywhere — outside of the case and the parties — is not what the courts are designed for.
In rejecting the concept of the universal injunction, the Supreme Court reaffirmed the proper role of the federal courts within our constitutional system. It is not naïve or undemocratic for the courts to lead by example in adhering to the rule of law.
Samuel Bray is a law professor at the University of Notre Dame.
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