If we could explain to him what executive orders of a President mean today and what jurisdiction the district courts now have, what would the great John Marshall have said about the Supreme Court’s opinion limiting the power of the district judges to issue universal or nationwide injunctions?

Introduction

In June, the United States Supreme Court handed down a landmark decision, holding that federal district courts may not issue “universal” or nationwide injunctions halting enforcement of presidential executive orders and must limit their remedies to the litigants in the case. This is a tremendously important ruling as it will affect not only President Donald Trump’s birthright citizenship policy, the underlying final issue in the case, but also all other policies and initiatives of this or other administrations of either party.

The majority and dissenting opinions in the case, Trump v CASA, show sharp disagreements among the Justices, and the debate over the issues raised has been intense. To a large extent, both sides recognize that the legal questions turn on what the founding fathers intended when they created the federal judiciary. Moreover, if we are truly concerned about what the framers wanted, we could not do better than to consider what the greatest Chief Justice in American history and one of the most important of the founders John Marshall would have said about this subject. This article will begin by summarizing some necessary legal background and then analyze briefly what the Court says in Trump v CASA. It will then make a case for John Marshall’s central role in the history of American jurisprudence and proceed to consider what Marshall might have said, for or against, the Court opinion. Looking at Marshall’s perspective can shed light on whether the Court was right or wrong in this vitally important case.

The Court Opinion: Background

The ruling in Trump v CASA, concisely stated, is that federal district courts, sitting “in equity,” may not issue “universal” injunctions to bar the enforcement of an executive order of the President of the United States as applied to all persons across the entire country. To anyone not acquainted with the court system, even this brief one-sentence summary will be unclear. What are the district courts? What are injunctions, and when are they “universal”? Some background is needed.

When the framers wrote the Constitution in the summer of 1787 in Philadelphia, they provided, in Article III, that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may, from time to time, ordain and establish.” In other words, only one federal court was created by the Constitution, the Supreme Court. The framers did, however, empower Congress to create lower federal courts, and they authorized Congress to invest those courts with jurisdiction (authority) to hear cases within the outer bounds of the limits on federal judicial power set in Article III.

The very first Congress created the federal district courts in the Judiciary Act of 1789, shortly after George Washington was sworn in as the first President. Today there are 94 federal district courts, at least one in every state and more in the more heavily populated states.

These courts have statutory jurisdiction to hear cases and controversies “in law and equity.” Equity emerged in England in the Middle Ages when litigants who couldn’t get relief in the ordinary common law courts would petition the king to rectify the injustice. In time, these matters were directed to the king’s right-hand man, the Chancellor, who began to convene courts of equity, where the proceedings were faster and the remedies more flexible.

We do not have separate courts of equity in America today, but when a court sits “in equity,” it can award civil remedies other than money damages, including injunctions, which are essentially court orders prohibiting a certain course of conduct or enforcement of a particular law or policy.

Enforcement of an executive order or law can be enjoined (prohibited) by a court if the law or order is unconstitutional. In the seminal case of Marbury v Madison (1803), Chief Justice Marshall established the Supreme Court’s power of judicial review, the power to declare acts of Congress or the President unconstitutional and void. Since then, it has come to be accepted that all federal courts, including the district courts, may determine the constitutionality of an act of Congress or the President and even issue injunctions stopping their enforcement, although the Supreme Court is always the highest authority on such matters. To whom, however, may these injunctions be addressed? For almost 200 years, the answer was typically only the litigants in the case. In the last few decades, however, federal district courts have begun to issue “universal” or nation-wide injunctions, applicable not only to the litigants in the case but to everyone in the United States.

Supporters of this enhanced judicial authority defend it as necessary to curb what they see as excessive legislative and especially executive power. Critics, however, point out that it leads to a phenomenon known as forum shopping in which potential plaintiffs (people bringing a civil lawsuit) choose a court likely to be favorable to their case. They also contend that it can lead to a blocking or at least a considerable slowing down of national policy.

The pattern, they say is by now all too familiar. A President issues an executive order or Congress passes a law. Some persons or groups negatively affected by the law or order go to a federal district court in an area of the country known to be hostile to the President’s or Congress’s policy and action.

That court then declares the President’s order or act of Congress likely unconstitutional and issues a temporary injunction banning its enforcement to anyone across the country. The government then appeals that injunction to the relevant court of appeals and, if unsuccessful there, to the Supreme Court.

In the meantime, other district courts, also carefully selected by plaintiffs, may issue other bans on the enforcement of the executive order or law at issue.

The overall result can be a freezing of the federal policy, nationwide, for a period of months or years before the merits of the relevant executive order or law have been finally settled by the Supreme Court.

According to critics, in times of crisis, this new use of universal injunctions could have a disastrous impact on the ability of the federal government to respond to an emergency. Imagine the world of the 1930s.

America is being ravaged by the Great Depression. President Franklin Roosevelt issues executive orders to deal with the situation. Opponents of these policies go to a federal district court in a part of the country notoriously hostile to FDR’s New Deal, perhaps in Maine or Vermont, which were the only two states to vote against him in his reelection landslide of 1936. The district courts in those states then issue injunctions banning enforcement of the President’s executive orders across the whole country. It may be months or years before the constitutionality of these orders can be decided by the Supreme Court. Until then, the administration’s hands are tied. The policy is frozen; it cannot be enforced. An even worse situation is imaginable in time of war. Would it have been acceptable, critics say, for a federal district court in a pro slavery border state like Kentucky to issue an injunction freezing President Lincoln’s suspension of habeas corpus or his blockade of the South or his Emancipation Proclamation for months or years while the Civil War raged and the Union was being dissolved?

Even when there is no dire emergency, it is said that the use of selected district courts to enjoin an entire national policy, even temporarily, thwarts the majority will of the voters. If the majority voted for Biden in 2020 or Trump in 2024, for example, they should expect the President’s policies will not be blocked by unelected local judges and can proceed, unless and until ruled unconstitutional by the Supreme Court, a co-equal branch of the government.

On the other side, supporters of universal injunctions argue that, without them, the rights of individuals are put on hold for months or years until the high court makes a final ruling on the matter of constitutionality. This is particularly bad, they say, in situations where long-settled rights have been uprooted by an abrupt change in policy, such as when the Trump administration issued an executive order changing the definition of natural-born citizenship.

The Court Opinion: Analysis

It was precisely this executive order which set the stage for Trump v CASA. Shortly after President Trump issued the order, plaintiffs challenged its constitutionality in federal district courts in Maryland, Massachusetts, and Washington state – not coincidentally three deep-blue states which the President did not carry in 2016, 2020, or 2024, and in which the judges were thought likely to be predisposed against his policies. These plaintiffs included a group of pregnant women whose future children, they asserted, could not be citizens under the new order, two immigrant-rights organizations with thousands of members across the United States who claimed they were likely to give birth to children who would also be denied citizenship under the order, as well as 22 states, the District of Columbia, and the city of San Francisco. The plaintiffs then asked the district courts to issue preliminary injunctions barring enforcement of the order while the litigation was pending.

They contended that, if allowed to go into effect even temporarily, the policy would do irreparable harm to their children or members’ children by making them subject to deportation before the courts could fully adjudicate their claim that the order violated the United States Constitution.

All three federal district courts, as expected, held that the order was likely to be held unconstitutional, that the plaintiffs would suffer irreparable harm by their immediate enforcement, and issued universal preliminary injunctions prohibiting the federal government from enforcing the President’s order against anyone in the United States. The Trump administration appealed these preliminary injunctions to the relevant Courts of Appeals, which denied the administration’s request to “stay” or halt them.

In appealing to the Supreme Court on this issue, the government was not arguing the constitutionality of the President’s birthright citizenship order. Nor was it denying that a district court could preliminarily enjoin the government from enforcing the executive order on the parties who had standing (the right to sue) in the case. Rather the administration asked the Supreme Court to rule that the district courts did not have the authority to issue universal preliminary injunctions, blinding on all persons in the United States. The Supreme Court agreed to this, granting the government’s applications “to partially stay the preliminary injunctions … but only to the extent that the injunctions are broader than necessary to provide equitable relief to each plaintiff with standing to sue.”

The Opinion of the Court (majority opinion) was delivered by Justice Amy Coney Barrett, who was appointed by President Trump in the last months of his first term to replace Justice Ruth Bader Ginsburg, who had died. Barrett begins her opinion by noting what is at issue: “the scope of a federal court’s authority to enjoin government officials from enforcing an executive order.” She goes on to observe that, traditionally, “courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit, [but 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.” “The issue before us is one of remedy,” she adds, “whether under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.” Holding that these injunctions “likely exceed the equitable authority that Congress has granted to federal courts,” Barrett, for the Court, grants the partial stay which the government was requesting.

In separate concurring opinions, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh all provide guidance about issues left unresolved by the Court opinion, including the constitutionality of universal injunctions and the use of class actions and other means to widen the number of parties in the case to whom a more narrowly drawn injunction could, by the Court’s ruling, be applicable.

Justice Alito in particular warns lower courts against using class actions to circumvent the Court’s ruling. All these Justices in the Court majority agree that the constitutionality of the President’s birthright citizenship order is not at issue in this case. Justice Sonia Sotomayor’s dissent shows clearly that she does not agree. Sotomayor begins by reviewing what she calls “the legal rule since the founding” that “children born in the United States and subject to its laws are United States citizens.” She goes on to point out that every court that has evaluated President Trump’s order has deemed it “patently unconstitutional, and, for that reason, has enjoined the government from enforcing it.” Sotomayor also accuses the administration and the courts of deliberate gamesmanship:

The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone. Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit. The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.

Sotomayor also mocks the government’s insistence that “it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship.” Justice Ketanji Brown Jackson, the sole Biden appointee on the Court, also wrote a separate dissent, saying she agreed with “every word of Justice Sotomayor’s dissent” and emphasizing that the “decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.”

Behind the debates of the Justices in the opinions of this case is a profound disagreement about the role of the courts in our separation of powers system of government. For Justice Barrett and the others in the majority, the role of the courts is to decide cases and controversies, as provided in Article III, and do justice to the litigants, but not to act as policemen enforcing the Constitution against all persons across the country. As Justice Barrett writes, “Observing the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law.” For Justices Sotomayor and Jackson, in dissent, the role of the federal courts is to declare the law and prevent the political branches (executive and legislative) from violating it:

Today’s ruling thus surreptitiously stymies the Judiciary’s core duty to protect and defend constitutional rights. It does this indirectly, by preventing lower courts from telling the Executive that it has to stop engaging in conduct that violates the Constitution. Instead, now, a court’s power to prevent constitutional violations comes with an asterisk—a court can make the Executive cease its unconstitutional conduct *but only with respect to the particular plaintiffs named in the lawsuit before them, leaving the Executive free to violate the constitutional rights of anyone and everyone else.

Where would the founding fathers stand on this divide? More particularly, how would the great Chief Justice John Marshall have decided this case, and why? It is to these questions that we now turn.

The Great Chief Justice, John Marshall’s Perspective

More than two thousand years ago, Aristotle noted that the job of the judge is often to “rectify the deficiency” in what the legislator has said and state “what the legislator would have said if he had been present there.” (Ethics, V:10)

Original intent means asking what the framers would have done or said if they had known about the circumstances and facts of our world.

John Marshall was not one of the “legislators” of the Constitution or the Bill of Rights. He was not present at the 1787 Philadelphia Convention which drafted the Constitution. Nor was he in Congress when the first judiciary act creating the federal district courts was passed in 1789.

Still, Marshall is absolutely at the center of American jurisprudence.

It would not be an exaggeration to say that that he was the greatest judge in American history, the man who, almost single handedly, made American law and the American Supreme Court what it is today. In masterful opinions for the Court from 1801-1835, Marshall defined America’s founding law.

There are some aspects of the Trump v CASA case, of course, that Marshall would not have known about. He did know of the federal district courts, but not of their general power to decide federal question cases.

The original statutes creating the lower federal courts, in Marshall’s day, confined them mostly to diversity cases, those in which the litigants were citizens of different states. General federal question jurisdiction was not given to the federal district courts until 1875, after the Civil War. Nor did Marshall or his Court know much of presidential executive orders in the modern sense. Presidents like Jefferson and Jackson issued proclamations during Marshall ‘s tenure on the Court, but the idea that they were considered the equivalent of statutory law made by Congress in some circumstances was not one that he or his contemporaries entertained. Therefore, the whole notion of a federal district court ruling on the constitutionality of a presidential executive order would not have made much sense to John Marshall.

Still, we cannot stop there. If we could explain to him what executive orders of a President mean today and what jurisdiction the district courts now have, what would the great John Marshall have said about the Supreme Court’s opinion limiting the power of the district judges to issue universal or nationwide injunctions, banning enforcement of unconstitutional executive orders across the entire country?

There seems no question that Marshall’s greatest political adversary, Thomas Jefferson, would have applauded the Court’s opinion in Trump v CASA. Jefferson’s opposition to the Marbury v Madison decision, for example, was based, not so much on a general antipathy to judicial review but rather to the idea that the Court was presuming to tell the Executive, an independent and equal branch of the federal government, what to do.

That was intolerable for Jefferson. He also thought that the Court’s authority to define what was constitutional or not should be confined only to the parties in the case. No court—not the District Courts, and not even the Supreme Court—could make generally binding decisions about the Constitution and make those applicable to everyone, especially the President, in Jefferson’s view. To say otherwise would be, he thought, to put unelected judges above the people’s own will, to debase democracy and majority rule.

Justice Barrett and the concurring justices in CASA say much the same.

What right do these local unelected judges have to block a national policy which We the People have endorsed by voting in the current administration?

Do we not believe in democracy? Do we not value the rights of the people?

A district judge who blocks a President’s policy across the whole country is acting as if he or she had been elected President rather than the present occupant of the White House, Jefferson and the Court majority would say.

Jefferson, of course, is not the only President to take this view.

In his veto of the Bank bill, President Andrew Jackson said that the opinion of the Supreme Court… ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

Jackson emphasized the fact that he swore a unique oath to “preserve, protect, and defend the Constitution,” the only oath written into the Constitution by the framers. That oath and his national mode of election made the President, in Jackson’s view, the “unique representative of the American people” and empowered him to interpret the Constitution, regardless of what the judges would say.

Lincoln took a similar view of the limits of judicial power in his First Inaugural Address:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government…. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges.

Jefferson, Jackson, and Lincoln would all probably have approved of the Court’s limiting the power of the district judges to tell the Executive what to do across the whole country. Surely, however, we are tempted to say, Chief Justice John Marshall would have taken the opposite view.

Marshall’s own words in Marbury seem to suggest that he would side with the dissenters in the CASA case:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict, the courts must decide on the operation of each.

Justice Jackson in her dissent in CASA appears to mirror Marshall’s words when she writes that “the role of the Judiciary in our constitutional scheme is to ensure fidelity to law” and when she accuses the Court of ignoring “the Judiciary’s foundational duty to uphold the Constitution and laws of the United States.” Citing the Marbury case, Jackson goes on:

By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law. Do not take my word for it. Venerated figures in our Nation’s history have repeatedly emphasized that the United States of America has “‘“a government of laws and not of men.”’

Nor would Marshall have agreed with Jefferson and Jackson that the President was largely immune from the Supreme Court’s authority. In Marbury, of course, Marshall goes out of his way to scold Jefferson and his Secretary of State Madison for not delivering the commissions to Marbury and the other appointed judges. In the case of Aaron Burr, Marshall had to decide “whether a subpoena duces tecum could be directed to the president of the United States, and in this particular case.” He began by saying that “in the provisions of the Constitution… which give the accused a right to the compulsory process of the courts, there is no exception whatever.”

Therefore, he concluded, “no person could claim an exemption.”

Marshall then addressed the argument of Jefferson, against his being subject to the subpoena, that, in Britain, it was considered “to be incompatible with his dignity for the king to appear under the process of the court.” This was because, under English law, “the king can do no wrong.”

Not so in America, Marshall held:

The president, however, is not a king: By the Constitution… the President… may be impeached and removed from office on conviction of high crimes and misdemeanors. By the constitution of Great Britain, the crown is hereditary and the monarch can never become a subject [but]… [the] President is elected from the mass of the people, and, on the expiration of the time for which he is elected, he returns to the mass of the people again.

Marshall concluded with this solemn command: “Let a subpoena duces tecum… be directed to Thomas Jefferson, President of the United States.” With those words, he proclaimed for all time that a President of the United States is a citizen like every other citizen, and subject to the rule of law. As the great common law jurist of England Bracton had said half a millennium before, the king is “under the law.”

Even most Jeffersonian Republicans supported Marshall’s decision. At this time of fanatical political battles, the principle that all men were equal under the law still held sway. As in Republican Rome, although Jefferson had become a god, like Julius Caesar, there were men who, like Cassius in Shakespeare’s play, saw him for what he was—a man, and nothing more.

Here too, Justice Jackson’s dissent seems to be written much as Marshall would have wanted:

Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law—full stop. To conclude otherwise is to endorse the creation of a zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes, and where individuals who would otherwise be entitled to the law’s protection become subject to the Executive’s whims instead.

Justice Barrett’s response to that is, yes everyone is under the law, judges included:

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.

In her opinion for the Court, Justice Barrett attacks Justice Jackson’s expansive view of judicial power:

Waving away attention to the limits on judicial power as a “mind­numbingly technical query,” she offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush…. In her law­ declaring vision of the judicial function,… [if] a single district court deems executive conduct unlawful, it has stated what the law requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere. JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary.

John Marshall would surely agree with Justice Barrett and the Court majority in CASA that, although “the Executive has a duty to follow the law… the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.”

As Barrett points out, in the Marbury case itself, Marshall holds that he is powerless to order the President and Secretary of State Madison to deliver the commission because the Court lacks jurisdiction. Moreover, Marshall was very cautious in his use of judicial review, never again employing it to strike down an act of Congress or the President after the Marbury decision and, indeed, never using it against the Jeffersonian party which controlled the Congress and the Presidency for most of Marshall’s time on the Court.

To some extent, this prudential restraint may be put down to political acumen. Marshall knew that the Jeffersonians wanted to impeach and remove him and the other Federalist judges. He therefore upheld many of their measures which he might otherwise have thought of dubious constitutionality, like the repeal of the Circuit Act relieving the Supreme Court Justices of circuit riding duties. Still, Marshall had a very keen sense of the limits of judicial power. He would definitely have agreed with Justice Barrett that respecting “the limits on judicial authority—including, as relevant here, the boundaries of the Judiciary Act of 1789—is required by a judge’s oath to follow the law.” The limited Marbury decision and countless other Marshall precedents support the conclusion that Barrett reaches, that

“federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”

Marshall would thus endorse both the limited nature of presidential power favored by Jackson in dissent and the limits on judicial power espoused by Barrett for the Court majority. How would the Chief Justice come down on the basic question, however: can a federal district court issue a nationwide injunction, blocking a president’s policy for the whole country?

It is difficult to say, but arguing by analogy, we know that Marshall was very suspicious of state or local attempts to thwart national policy, laws, or institutions. He struck down Maryland’s tax on the Baltimore branch of the Bank of the United States in the landmark case of McCulloch v. Maryland because it was a tax by the state legislature on an institution “created, not by their own constituents, but by people over whom they claim no control.”

By their tax on the national bank, Marshall said, Maryland was acting “upon the measures of a government created by others in common with themselves, for the benefit of others in common with themselves.” This, he said, was a form of taxation without representation.

By imposing injunctions on any enforcement of presidential orders against all persons across the country, local federal district judges are also acting upon the measures of a government created for the benefit of all the American people. Like the state legislature in Maryland, or the state of New York in granting steamboat monopolies to boats on the Hudson River in Gibbons v Ogden, these local judges are affecting the entire country, far beyond their jurisdiction or authority.

To the extent that the opinion in Trump v CASA is limited to denying the power of federal district courts to issue nationwide injunctions blocking federal policy, then, Marshall would surely have agreed with it. He would also have liked the cautious and limited way in which Justice Barrett frames the issues and writes her majority opinion. Although many conservatives who had been wary of Justice Barrett now hail her opinion in CASA as a sign of her willingness to uphold the administration’s policies, Justice Marshall would see her opinion as justifiably narrow in many ways.

First, Barrett states categorically that the constitutionality of the birthright citizenship order itself is not at issue in the case:

The applications do not raise—and thus we do not address the question whether the Executive Order violates the Citizenship Clause or Nationality Act. The issue before us is one of remedy: whether, under the Judiciary Act of 1789, federal courts have equitable authority to issue universal injunctions.

Marshall was similarly unwilling to decide the constitutional issue of whether states could regulate interstate commerce in the absence of federal regulation—the question of what is sometimes called “the dormant commerce clause”—in Gibbons v. Ogden, holding that there was federal regulation so that broader issue was not necessary to resolve. In much the same way, Justice Barrett says the Court is not deciding whether states or organizations have standing to sue on behalf of their residents or members. And she repeatedly stresses that the opinion is based entirely on statutory authority, not the Constitution:

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.

In his concurring opinion, Justice Thomas says that “serious constitutional questions would arise even if Congress purported to one day allow universal injunctions,” but Justice Barrett, in the Opinion of the Court, does not say this, and it is doubtful whether any other Justice, besides Justice Gorsuch, who joined Justice Thomas’s concurrence, would side with him on this issue. In other words, it seems that, at least for Justice Barrett, the Chief Justice, and possibly also Justice Kavanaugh, Congress could constitutionally authorize federal district courts to issue universal injunctions banning enforcement of a president’s policy or an act of Congress across the country.

Were he on the Court today and joining the majority opinion in CASA, John Marshall would probably have scolded Justices Thomas and Gorsuch for offering an opinion on a constitutional question that did not have to be decided. We know that he scolded Associate Justice Johnson for addressing the issue of the dormant commerce clause in his concurring opinion in Gibbons. Courts, Marshall would have said, shouldonly address the issue raised and not decide constitutional questions when they do not have to. Marshall might have a similar criticism of Justice Alito’s concurrence, where he warns about a number of issues left unresolved by the Court opinion, including the status of third party standing and class actions. Marshall might well agree that if lower courts allow class certification too easily, that could circumvent the Court’s ruling in the case. Still, he probably would have said, the Justices should wait until another case to deal with that issue.

There is also an additional reason that Justice Barrett’s opinion for the Court is narrow. It is based almost entirely on history. Barrett begins, understandably, with recent history:

By the end of the Biden administration, we had reached “a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.” The trend has continued: During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions. As the number of universal injunctions has increased, so too has the importance of the issue.

Turning to English courts at the time of the nation’s founding, she notes that neither “the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.” Casting an eye over most of American judicial history, she emphasizes the relative novelty of universal injunctions:

In fact, universal injunctions were not a feature of federal­ court litigation until sometime in the 20th century.… Ninety­-six of them—over three quarters—were issued during the administrations of President George W. Bush, President Obama, President Trump, and President Biden. The bottom line? The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th and 19th century equity practice settles the question of judicial authority. That the absence continued into the 20th century renders any claim of historical pedigree still more implausible. Even during the “deluge of constitutional litigation that occurred, throughout the Lochner Era, and at the dawn of the New Deal,” universal injunctions were nowhere to be found. Had federal courts believed themselves to possess the tool, surely they would not have let it [lie] idle.

If Justice Barrett’s historical review of the history of equity and the absence of universal injunctions in all but the most recent American history is accurate, then Justice Sotomayor is plainly wrong to refer in dissent to universal injunctions as a “centuries-old practice.” From there, the dissent launches into a rather extreme picture of the consequences of the decision:

No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law­ abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.

For all the hyperbole, however, the dissent does make a very important point that would have disturbed John Marshall. The logic of the Court’s opinion, Justice Sotomayor points out, suggests that all federal courts, including the Supreme Court, are always prohibited from issuing universal injunctions.

In other words, even if the United States Supreme Court held that an act of Congress or the President was unconstitutional, they would, according to the dissent’s reading of the precedent set in this case, have no authority to order the government to stop enforcing that law or order against anyone except the actual parties to the lawsuit. Justice Sotomayor stresses this point:

The majority interprets the Judiciary Act, which defines the equity jurisdiction for all federal courts, this Court included, as prohibiting the issuance of universal injunctions (unless necessary for complete relief). 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.

If it were true that the majority opinion in this case really does divest the Supreme Court of the power to prohibit enforcement of any unconstitutional order or law to all but the specific parties in the case, I believe John Marshall would have opposed that as a radical shift in settled American law going back to the Marbury case. Marshall firmly believed in the Supreme Court as the ultimate authority on federal law. If the Court were abdicating its power to enforce constitutional rulings on anyone except the litigants in the case, the dissent’s dire warnings would make sense.

Perhaps in response to this concern, Justice Kavanaugh in his separate concurrence emphasizes that the ruling is only about the power of the district courts. The case, he says, is about “what district courts may do.” Nothing in the opinion, Justice Kavanaugh writes, should be construed to limit the Supreme Court’s authority as the ultimate interpreter of the Constitution.

Understood this way, as a limit on the power of local federal district judges, John Marshall would have approved the decision in Trump v CASA.

Had he written the majority opinion in the case, he would, no doubt, have called more attention to that limited holding and reasserted the essential role of the Supreme Court—not the District Courts, but the Supreme Court—as the interpreter of the Constitution and the guardian of the rule of law against all those who would violate it, whether congress, presidents, or judges.

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