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The Supreme Court handed down a landmark ruling – on its last day before breaking for summer – in Trump v. CASA. The case involved a preliminary injunction that blocked Donald Trump’s January 20 executive order on birthright citizenship. While the action on birthright citizenship was the vehicle carrying the issue, the Court ruled instead on universal injunctions themselves. By a vote of 6-3, in an opinion authored by Justice Amy Coney Barrett, SCOTUS issued a ruling affecting a wide range of executive actions. She wrote:
“Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as ‘universal injunctions’—likely exceed the equitable authority that Congress has granted to federal courts.”
That language is right from Barrett’s opinion, and it frames the issue perfectly. We have seen, especially since Trump’s first term, a new willingness for district court judges to issue these universal injunctions. That ended Friday, June 27. Senator John Kennedy (R-LA), a member of the Judiciary Committee, said the Supreme Court turned the universal injunction into “fish food.” And that the ruling was extensive, which we could tell from Justice Ketanji Brown Jackson’s dissent and its harsh, forceful tone. Known for his ability to turn a phrase, Kennedy did not disappoint. He said: “She’s mad as a bag of cats, and that’s probably a good thing for the American people.” More on Jackson in a bit.
Barrett’s majority examined the history, finding: “If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy.” And they rebuffed policy-based arguments for keeping universal injunctions in place. “As with most questions of law, the policy pros and cons are beside the point. Under the Court’s well-established precedent, because universal injunctions lack a founding-era forebear, federal courts lack authority to issue them.”
Justice Sonia Sotomayor wrote the principal dissent. She criticized the majority for not focusing at all on the legality of Trump’s order (or the lack thereof), arguing: “Yet the Order’s patent unlawfulness reveals the gravity of the majority’s error and underscores why equity supports universal injunctions as appropriate remedies in this kind of case.” She continued:
“There may be good reasons not to issue universal injunctions in the typical case, when the merits are open to reasonable disagreement and there is no claim of extraordinary and imminent irreparable harm. The universal injunctions in these cases, however, are more than appropriate. These injunctions, after all, protect newborns from the exceptional, irreparable harm associated with losing a foundational constitutional right and its immediate benefits. They thus honor the most basic value of our constitutional system: They keep the Government within the bounds of law.”
Justice Jackson signed on to the dissent, writing, “I agree with every word of Justice Sotomayor’s dissent.” Why then write independently? To take the majority to the woodshed for the outrageous opinion they have signed. Trump v. CASA, Inc. included the most strident words in dissent this court-watcher has seen in recent memory – and perhaps ever. What’s more is that Justice Barrett – and accordingly, every one of her colleagues who signed on to her opinion, including the Chief Justice – replied by insulting her opinion. And it didn’t come in a veiled fashion or with a wink and a nod – it was a full-on attack of Jackson’s dissent filed within the majority opinion.
Barrett said Sotomayor’s dissent was focused on “conventional legal terrain,” but that “Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.” It got worse for Jackson from there, with Barrett unrelentingly writing:
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
And for the coup de grâce, Barret finished with: “Justice Jackson would do well to heed her own admonition: ‘[E]veryone, from the President on down, is bound by law.’ That goes for judges too.” Donald Trump, meanwhile, was delighted with the decision and the recent work of the Court. He held court himself with a lengthy press briefing from the White House after the decisions were announced. Trump mentioned Barrett and thanked her for the opinion.
What’s next for birthright citizenship now that the injunction is pared back? According to the Supreme Court, the executive order is delayed for at least 30 days so lower courts can assess the appropriate scope of the injunctions going forward, and advocates can seek additional relief for those affected.