The Supreme Court Is Supreme, And The Inferior Courts Are Inferior
Mi CASA no es su CASA
Trump v. CASA is one of the Supreme Court's most important decisions about the powers of the Supreme Court. It ranks up there with City of Boerne v. Flores, Cooper v. Aaron, and maybe even Marbury v. Madison. To be clear, CASA was not a ruling about the Article III powers of the lower courts. Justice Barrett was quite clear the Court was only ruling based on whether the Judiciary Act of 1789 permitted universal injunctions.
Our decision rests solely on the statutory authority that federal courts possess under the Judiciary Act of 1789. We express no view on the Government's argument that Article III forecloses universal relief.
CASA also did not directly discuss the Article III powers of the Supreme Court in particular. Instead, the majority seemed to accept the premise of judicial supremacy, at least based on the Solicitor Generals' representation. By contrast, Justice Kavanaugh embraced it wholeheartedly. In short, the Supreme Court is Supreme, and the inferior courts are inferior. Or, mi CASA no es su CASA.
Justice Barrett, citing her opinion in Brackeen, explains that a judicial opinion has no legal force. Rather, it is the judgment of a federal court that has force, and can remedy an injury.
In her law-declaring vision of thejudicial function, a district court's opinion is not just persuasive, but has the legal force of a judgment. But see Haaland v. Brackeen, 599 U. S. 255, 294 (2023) ("It is a federal court's judgment, not its opinion, that remedies an injury").
I disagree with much in Brackeen, but this statement is correct.
However, in Footnote 18, Barrett explains that the Supreme Court's opinions do have legal force. Or at least she quotes Solicitor General Sauer's representation on this point.
The dissent worries that the Citizenship Clause challenge will never reach this Court, because if the plaintiffs continue to prevail, they will have no reason to petition for certiorari. And if the Government keeps losing, it will "ha[ve] no incentive to file a petition here . . . because the outcome of such an appeal would be preordained." Post, at 42 (opinion of SOTOMAYOR, J.). But at oral argument, the Solicitor General acknowledged that challenges to the Executive Order are pending in multiple circuits, Tr. of Oral Arg. 50, and when asked directly "When you lose one of those, do you intend to seek cert?", the Solicitor General responded, "yes, absolutely." Ibid. And while the dissent speculates that the Government would disregard an unfavorable opinion from this Court, the Solicitor General represented that the Government will respect both the judgments and the opinions of this Court. See id., at 62–63.
I'm not sure that Justice Barrett agrees with that statement. Indeed, Brackeen suggests just the opposite. But when the Solicitor General makes a representation, that representation is binding on the government. I agree with Jack Goldsmith that this acquiescence to judicial supremacy will come back to haunt the government for generations.
While Justice Barrett is perhaps tepid, Justice Kavanaugh fully embraces this species of judicial supremacy. He thinks it would be an "abdication" of the Supreme Court's "proper role" to let the lower courts make the "interim" ruling that would last for years.
That suggestion is flawed, in my view, because it would often leave an unworkable or intolerable patchwork of federal law in place. And even in cases where there is no patchwork—for example, because an application comes to us with a single nationwide class-action injunction—what if this Court thinks the lower court's decision is wrong? . . . . So a default policy of off-loading to lower courts the final word on whether to green-light or block major new federal statutes and executive actions for the several-year interim until a final ruling on the merits would seem to amount to an abdication of this Court's proper role.
Kavanaugh sees the Supreme Court's supremacy as either a matter of fact (de facto) or a matter of law (de jure). Descriptively, I probably agree with the former claim. Even before Cooper, the Supreme Court was the de facto body to resolve judicial conflicts. But the de jure claim to supremacy claim was only made in Cooper.
Second, if one agrees that the years-long interim status of a highly significant new federal statute or executive action should often be uniform throughout the UnitedStates, who decides what the interim status is? The answer typically will be this Court, as has been the case both traditionally and recently. This Court's actions in resolving applications for interim relief help provide clarity and uniformity as to the interim legal status ofmajor new federal statutes, rules, and executive orders. In particular, the Court's disposition of applications for interim relief often will effectively settle, de jure or de facto, the interim legal status of those statutes or executive actions nationwide.
Here, Justice Kavanaugh is embracing Cooperian supremacy. But Cooper did not concern the Supreme Court's power to issue universal injunctions. And that case concerned a ruling against state officials, not a coordinate branch of government. If the Court has the power to issue universal injunctions against the federal government de jure, that power would have to come from a statute or Article III itself. Justice Sotomayor raises this point in her dissent:
What, besides equity, enables this Court to order the Government to cease completely the enforcement of illegal policies? The majority does not say.
No, Justice Barrett does not say. If the Judiciary Act of 1789 does not give inferior courts the power to issue a universal injunction, where does the Supreme Court get that power? Justice Kavanaugh also does not say. And Justice Sotomayor thinks it is "naive" to believe the government would abide by this ruling "de facto."
So even if this Court later rules that the Citizenship Order is unlawful, we may nevertheless lack the power to enjoin enforcement as to anyone not formally a party before the Court. In a case where the Government is acting in open defiance of the Constitution, federal law, andthis Court's holdings, it is naive to believe the Government will treat this Court's opinions on those policies as "de facto" universal injunctions absent an express order directing total nonenforcement. Ante, at 6 (opinion of KAVANAUGH, J.).
I don't think any of these statements were necessary to rule that universal injunctions were impermissible. These statements of judicial supremacy are regrettable.
Justice Scalia closed his Noel Canning concurrence with this admonition:
We should therefore take every opportunity to affirm the primacy of the Constitution's enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court's embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.
I could say the same thing about CASA, changing "aggrandizing the Presidency" to "aggrandizing the Supreme Court."