Trump Is Now More Powerful Thanks to the Supreme Court. But Will It Last?
Plus: Conservatives won big overall this year at the Supreme Court.
The U.S. Supreme Court concluded its 2024–25 term on Friday with a high-profile ruling that leaves President Donald Trump with more power to impose his second-term agenda. But the Court's decision on nationwide injunctions also contained several exceptions that may render Trump's victory short-lived. The big question now is exactly how long the president's new judicially sanctioned boost will last.
Don't miss the big stories in constitutional law--from Damon Root and Reason.
But before we dig further into that case, let's talk about the rest of the term. Big picture–wise, this one will be remembered as a very good term for conservatives, especially when it comes to hot-button social and cultural issues. For instance:
- In United States v. Skrmetti, the majority upheld a Tennessee law that forbids health-care providers from offering certain transgender care for minors.
- In Mahmoud v. Taylor, the majority ruled that a Maryland school board violated religious liberty when it refused to provide an opt-out for parents who did not want their children to participate in lessons featuring LGBTQ+ themes.
- In Medina v. Planned Parenthood South Atlantic, the majority ruled that Planned Parenthood had no legal standing to sue South Carolina over its exclusion of Planned Parenthood from the state's Medicaid program.
- In Free Speech Coalition v. Paxton, the majority rejected a First Amendment challenge to a Texas law requiring the age verification of all visitors to porn websites.
In these cases, the Supreme Court's six Republican-appointed justices broadly deferred to the policy choices of Republican state officials. As Justice Clarence Thomas argued in Paxton, the majority adopted a posture "which is deferential but not toothless." Or as Chief Justice John Roberts put it in Skrmetti, the majority was unwilling "to second-guess the lines" drawn by Tennessee lawmakers.
The Court's three Democratic appointees, meanwhile, sharply dissented in each of those cases. The Supreme Court's 6–3 conservative-liberal divide—which is not always present in big cases—was certainly on full display in these far-reaching decisions.
Which brings us back to the biggest story of the term, the fight over nationwide injunctions.
This case, Trump v. CASA, stemmed from several lawsuits challenging Trump's executive order purporting to abolish birthright citizenship for millions of American-born children. (For my views on why Trump's executive order is unconstitutional under the text, history, and original public meaning of the 14th Amendment, see here and here.)
The federal district judges weighing these challenges to Trump's executive order all issued nationwide injunctions, which blocked the order from being enforced not only against the parties that specifically brought the cases—such as the members of the immigration group CASA—but also throughout the entire country, while the various lawsuits played out.
The Supreme Court on Friday declared that the nationwide part of those injunctions "likely exceed[s]" the authority of the judges who issued them. The Court then sent the cases back down to the district courts, instructing those judges to ensure that their respective injunctions are not "broader than necessary to provide complete relief to each plaintiff with standing to sue." (Note: The Supreme Court did not disturb the favorable rulings for the specifically named parties, such as CASA, which means that Trump's order is still blocked from being enforced against those named parties.)
You may have heard that the Supreme Court "killed" or "eliminated" nationwide injunctions. But that's not quite accurate. The better word is probably limited. That is because the Supreme Court left open the possibility that a nationwide injunction might still be appropriate to provide "complete relief to each plaintiff with standing to sue" in some potential cases, just not in these particular cases.
More significantly, however, the Court left open the possibility for other types of legal challenges to proceed that could still block an executive order from going into effect nationwide. Let's call these the exceptions.
For instance, CASA absolutely did not foreclose the option of filing a national class-action lawsuit against Trump's executive order. In fact, in a separate concurrence, Justice Samuel Alito fretted about that very outcome, warning that "district courts should not view today's decision as an invitation to certify nationwide classes without scrupulous adherence" to the legal rules governing class-actions. It is perhaps notable that only Justice Clarence Thomas signed on to Alito's worrying concurrence.
A class-action lawsuit, of course, involves one or more individuals suing on behalf of a much larger group of similarly situated people. If successful, a national class-action could lead to a broad judicial order that prevents the president from enforcing his decree while the class-action plays out in court. Sound familiar?
To be sure, the plaintiffs, lawyers, and judges involved in a class-action are required to jump through a number of additional legal hoops. But the results of a successful class-action may not be so dissimilar from the results of a nationwide injunction.
That's one big exception in the CASA ruling that could cut strongly against Trump. Another exception involves the states.
Here's a noncrazy hypothetical to ponder. Among the parties challenging Trump's order is the state of New Jersey. What happens if New Jersey succeeds in blocking Trump's order from going into effect in the Garden State while its lawsuit plays out, yet other states do not get—or do not seek—a similar ruling of their own? More to the point, what happens if a baby is born into U.S. citizenship in New Jersey, where Trump's order has not gone into effect, but the family travels to Texas or some other state where Trump's executive order has gone into effect? Can Texas, acting in cahoots with the Trump administration, refuse to recognize the citizenship of that U.S.-born child? What other legal consequences might might follow for the child?
To avoid this kind of dramatic state-to-state uncertainty, a federal judge might just need to block Trump's order from going into effect nationwide so that New Jersey may obtain "complete relief" while its case plays out. Whatever legal name that scenario goes by, the results could function a lot like a nationwide injunction.
For now, Trump has more power to impose his agenda because the Supreme Court has told federal judges to lay off on the nationwide injunctions. But if the same judges adhere to what I have been calling the CASA exceptions, then Trump might end up right back where he started, with his birthright citizenship order widely blocked from going into effect. And if that happens, it seems like the judges' actions would then pass muster under CASA.
How likely is that to happen? The Supreme Court told Trump that his order "shall not take effect until 30 days after the date of this opinion." That's enough time for the legal challengers and their savvy lawyers to revise and resubmit. In fact, CASA has already done so. That group filed a national class-action lawsuit against Trump's birthright citizenship order on Friday, while the ink was still drying on the Supreme Court's opinion.
We may find out soon if that attempt to make use of the exception pays off.
