The Volokh Conspiracy
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Bray and Bagley on Trump v. CASA
Two worthwhile commentaries on the Supreme Court's decision to curtail universal injunctions.
There has been quite a bit of quick commentary on the Supreme Court's decision to curtail the entry of universal injunctions in Trump v. CASA, much of it generating more heat than light (including that offered by President Trump). This post highlights two essays on the decision that are worth the read.
First is an op-ed by Samuel Bray in the New York Times, "The Supreme Court Is Watching Out for the Courts, Not for Trump." Professor Bray has been among the most persistent and important critics of universal injunctions and Justice Barrett relied upon his scholarship in her decision. In his op-ed, he gives his read of the decision, explains why it is unlikely to allow President Trump's unlawful Birthright Citizenship Executive Order to ever take effect, and explains why he thinks it "gives the courts a chance to reset, and to shift toward the more deliberative mode in which they do their best work." He notes that the decision surfaces "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.
As should be clear, the Court has embraced the latter conception. Indeed, Justice Barrett rejected Justice Jackson's explication of the alternative vision quite forcefully.
Bray adds:
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.
Another commentary worth reading is by Nicholas Bagley, who has also long been critical of universal injunctions, albeit from the Left. (He testified against them in 2020.) In an Atlantic essay, "The Supreme Court Put Nationwide Injunctions to the Torch," he suggests his fellow progressives should be more supportive of the Court's decision.
Although the Supreme Court divided along partisan lines, with the liberal justices dissenting, I don't see this as a partisan issue. (The outrageous illegality and sheer ugliness of President Donald Trump's executive order that lies underneath this fight may go some distance to explain why the three liberals dissented.) Nationwide injunctions are equal-opportunity offenders, thwarting Republican and Democratic initiatives alike. Today, it's Trump's birthright-citizenship order and USAID spending freezes. Yesterday it was mifepristone, the cancellation of student debt, and a COVID-vaccine mandate. Why should one federal judge—perhaps a very extreme judge, on either side—have the power to dictate government policy for the entire country? Good riddance.
Like Bray, Bagley notes the range of relief that will still be available to litigants, such as through class actions and (unfortunately) under the APA. He also sees universal injunctions as a symptom of broader problems in our legal culture that may take longer to fix.
Nationwide injunctions are a symptom of a legal culture that affords judges a central role in American policy making. Without changing that legal culture, and the many different laws and doctrines that underwrite it, any single change—even one as significant as ending nationwide injunctions—will yield only a modest course correction.
