Handed down on the last day of June, the Supreme Court’s decision in Trump v. CASA was the most important of the term. The court’s six Republican-appointed justices, in an opinion by Justice Amy Coney Barrett, ruled that district court judges can no longer issue universal or nationwide injunctions. Such injunctions exploded in the first six months of President Donald Trump’s second term, as mostly Democratic-appointed judges used them to negate one White House initiative after another. Fed up, the administration asked the justices to decide whether issuing such decrees was a legitimate exercise of judicial authority. They agreed, and CASA was the result.
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As welcome and necessary as this intervention was, it is unlikely to prove sufficient. The lower courts still possess various means to thwart the administration, some of which they have already deployed. Moreover, the reaction on the Right to the campaign of judicial obstruction has unleashed forces that are difficult to contain once loose.
All of which is to say that though it may not be too little, the Supreme Court’s move to step in and disempower the lower courts may be too late. The constitutional showdown between the executive and judicial branches that has been building since Trump was sworn in as president for a second time has only been postponed, not prevented. Judges’ alarmed response to Trump’s return has fomented a crisis that, if it continues on its current trajectory, will lead to a fundamental reordering of the courts’ role in our constitutional settlement. How the Supreme Court negotiates this executive-judicial antagonism from now until Trump leaves office will determine the future of the federal judiciary. Nothing less than the fate of Article III is at stake.
The scale of the judicial opposition to Trump is unprecedented. He has been subject to more litigation, more temporary restraining orders, or TROs, and more preliminary and permanent injunctions in his first six months back than most entire presidencies. According to a website created by the conservative legal organization Article III Project, Trump has faced “judicial sabotage” in the form of over 260 injunctions.
Given this massive “resistance,” the justices no doubt felt it behooved them to set some limits on their inferior brethren, who since January have been behaving like a platoon of black-robed Lilliputians trying to down an orange-hued Gulliver. The Supreme Court had already ruled in his favor in nearly all the emergency appeals the administration filed, allowing many Trump policies frozen by the lower courts, such as his ban on transgender people in the military, his termination of Democratic appointees to independent agencies, and the cancellation of Department of Education grants for DEI programs, to take effect.
These were all one-off rulings on the so-called shadow docket. Something more permanent and definitive was needed. Enter Trump v. CASA. On the surface, the case was about the most controversial of Trump’s executive orders, the one stripping the children of illegal immigrants of birthright citizenship. Four separate district judges had enjoined the policy. Yet CASA was not a ruling on the substance of the dispute. The administration did not ask the justices to decide if Trump can cancel birthright citizenship. Instead, the only matter before them was whether district courts can issue universal injunctions, that is, injunctions that apply not just to the parties who brought the case but to anyone who might be affected by the government action being challenged.
The court’s Republican-appointed majority determined that issuing such injunctions likely exceeds those courts’ authority under the law that created them, the Judiciary Act of 1789. Other means of affording “complete relief” to plaintiffs, such as class actions, third-party suits by states, and vacatur under the Administrative Procedure Act, remain available (and both Justices Clarence Thomas and Samuel Alito warned in separate concurrences of the potential for these mechanisms to undermine the court’s verdict in CASA if used too freely), but nationwide injunctions would no longer be a weapon in the judicial arsenal.
By ruling as it did in CASA, the Supreme Court was sending a very loud, very clear message to the lower courts that the time has come for them to abandon their reckless, wanton disregard for the jurisdictional, statutory, and constitutional constraints within which they operate and pump the brakes on their quixotic quest to stop Trump from being president. As Barrett, quoting Justice Ketanji Brown Jackson’s fiery dissent, put it: “‘Everyone, from the President on down, is bound by law.’ That goes for judges too.” But it doesn’t seem to have been received. For in the weeks since the CASA decision was released, the lower courts have been sending a very loud, very clear message of their own: FULL SPEED AHEAD!
This is especially true on immigration, on which they have been acting as a law unto themselves for months. A Biden appointee in California recently ordered Immigration and Customs Enforcement to stop its raids to arrest illegal immigrants in Los Angeles. The Obama-appointed judge in Maryland overseeing the case of Kilmar Abrego Garcia, the illegal immigrant from El Salvador mistakenly sent back there in the spring, is considering forcing the federal government to return him to Maryland from Tennessee, where he is in prison on human smuggling charges, even though he has a final order of removal and she therefore does not have jurisdiction over any immigration proceedings concerning him. A judge in New York ruled that Homeland Security Secretary Kristi Noem could not end temporary protected status for 350,000 Haitians living in the United States, even though the Supreme Court had already allowed her to do so for 500,000 Venezuelans in the country.
Class action suits were one of the alternatives to universal injunctions the Supreme Court left standing. Unsurprisingly, judges have already taken advantage of that. A New Hampshire judge this month authorized class certification in a lawsuit against Trump’s birthright citizenship order and issued a classwide injunction, which, because it covers the entire class, has the same effect as a universal injunction. Another in Washington, D.C., ruled the week following CASA that Trump’s efforts to end asylum at the southern border were illegal. He certified a class of all asylum-seekers affected by Trump’s order.
A Massachusetts judge, Brian Murphy, had ruled that the government could not deport eight violent criminal illegal immigrants to South Sudan, a country to which they have no ties. After the Supreme Court authorized third-country removals in general, Murphy maintained his block on deporting the eight men on the grounds that the government had violated his May order preventing their deportation. The Trump administration appealed, and the justices ruled that their order authorizing third-country removals applied to the eight men. “If the Government wishes to seek additional relief in aid of the execution of our mandate,” they added, “it may do so through mandamus.” Mandamus is a judicial writ commanding the performance of an action. In effect, the justices were telling Murphy that if he continued misbehaving, he’d be forced to comply and perhaps even be taken off the case. He must have gotten the hint, for when the same eight detainees filed a petition seeking their release before a different court that was then reassigned to him, he quickly denied it.
Flouting the Supreme Court has nearly become routine. An Oregon judge ruled this month that the Department of Homeland Security could not engage in mass terminations of humanitarian parole for illegal immigrants, citing favorably a similar ruling from a Massachusetts judge in April. Never mind that the Supreme Court stayed that earlier ruling in May. That should have been enough to persuade the Beaver State jurist to stand down, but he was undeterred. So, too, was the Maryland judge who ruled against Trump’s attempt to fire three Democratic members of the Consumer Product Safety Commission, even though the Supreme Court had already greenlit his dismissals of members of the National Labor Relations Board and other agencies, on grounds that were the legal equivalent of “because reasons.” The 4th Circuit upheld the lower court’s ruling, joining in the defiance of the Supreme Court.
Perhaps the most execrable ruling by a “Resistance” judge, pre- or post-CASA, is the one issued by an Obama appointee, Judge Indira Talwani of Massachusetts, blocking the provision in the One Big Beautiful Bill Act denying Medicaid funding to Planned Parenthood. Her TRO was a travesty, violating multiple rules governing how and when a TRO should be issued. After the Justice Department requested that she dissolve it for these violations, she instead promulgated an updated one that was even more specious. Among her justifications was that denying funding to Planned Parenthood violated its affiliates’ First Amendment rights of free association. That it’s a gross violation of the separation of powers for a judge to order the executive to spend money Congress hasn’t appropriated seems never to have occurred to her.
“This is the progressive judiciary using injunctions and TROs as part of lawfare and ‘resistance’ against Trump,” National Review’s Jeffrey Blehar observed. “Protest, delay, lawless rulings — it is any weapon to hand right now for lawyers and like-minded judges such as this.” Yet such expedients, Blehar noted, are doomed to be counterproductive, for they only serve as a goad to the executive to ignore the judiciary. “If you really want to hasten America’s collapse into [a] truly imperial presidency, then rulings like this — transparently political rulings designed only to delay, rulings that profane the very concept of functioning constitutional law — are the quickest way to get there.”
Plenty of district judges are ready and willing to grease the skids. With a few exceptions, almost all of them are Democratic appointees in the bluest of states, such as California, Massachusetts, Maryland, and Washington. It’s no accident that most of the suits against Trump have been filed there. The CASA decision did nothing to crack down on court shopping, in which plaintiffs file suits where they are sure to get a friendly judge. Democratic judges in blue jurisdictions aren’t going anywhere, and they still have plenty of scope to make mischief. As such, it’s hard to disagree with the conservative writer Benjamin Weingarten that “unless the Supreme Court reins in lower-court judges with blunt deterrent force or Congress asserts its power over the courts it established, judicial tyranny may persist.”
This is the first way in which CASA may prove insufficient: It has, as yet, done nothing to rein in the lower courts, which so far show no intention of honoring it. The second way stems from the first. District judges’ incorrigibility will just exacerbate the disaffection with the judiciary that has been festering on the Right since Trump returned and these judges promptly set about trying to undo the election.
Trump called for the impeachment of Judge James Boasberg after he ruled against his invocation of the Alien Enemies Act, labeling him a “troublemaker and agitator.” One Republican congressman filed impeachment articles against him. Another did the same with the California judge who tried to stop Trump from federalizing the California National Guard to quell riots against ICE in Los Angeles. Sens. Mike Lee (R-UT) and Josh Hawley (R-MO) both mused about impeaching Talwani after her ludicrous TRO. Impeachment will go nowhere, but the further judges stray from the law, the more normalized demands for it will grow among Republicans.
Whether it’s of Talwani or any of two dozen more, imprecations against “lawless overreach” by “rogue judges” from administration figures such as Attorney General Pam Bondi, DOJ chief of staff Chad Mizelle, top Trump aide Stephen Miller, congressional Republicans, and allied activists and groups, have become rote. That often they’re correct yet can do nothing but stew while they wait on the Supreme Court compounds the frustration.
Worse from the judges’ perspective is the way their conduct is promoting court-packing on the Right. I don’t mean court-packing in the usual sense of adding seats to the Supreme Court. But in addition to impeachment, Republicans have already proposed as ways of cracking down on the courts stripping them of jurisdiction, defanging judges’ ability to hold administration officials in contempt, and forcing them to make plaintiffs put up bonds commensurate to the monetary value of their claims instead of the nominal amounts they have been requiring. None of these proposals has come to fruition yet. But the seal has been broken, and as all of them would in one way or another alter the functioning of the judiciary, court-packing is as good a description of them as any.
Few administrations would have sued every judge in a district court, as the Trump administration did in the District of Maryland last month. Yet no district court had previously issued a standing order automatically staying removal proceedings against any illegal immigrant who files a habeas petition. The idea was to prevent the administration from immediately deporting someone ordered removed from the country. The order, though, contradicted long-standing federal rules that injunctions must be tailored to the facts of a case and not granted as a matter of course. Once again, one wonders just who it is that is transgressing norms.
Trump is channeling this newfound antipathy into a revamped approach to selecting judges. Out are the usual Federalist Society types, and in are “battle-tested,” “bold and fearless” judges who are cut from the MAGA cloth. Trump’s nomination of Emil Bove, his former defense attorney and current No. 3 at the Department of Justice, to the 3rd Circuit Court of Appeals is the model. That Bove allegedly told his colleagues the administration might eventually have to say “f*** you” to judges and ignore their orders only makes him more, not less, attractive. James Ho and Lawrence VanDyke, two judges Trump appointed to the federal appeals courts in his first term, have seen their stock rise as possible Supreme Court picks because of their combative, take-no-prisoners attitudes. Ho’s willingness to criticize what he sees as the Supreme Court’s shortcomings in handling the judicial “resistance” probably doesn’t do his prospects any harm.
Trump wants fighters inside the courts because he has made clear that when the time comes, he has every intention of fighting the courts from the outside. This was evident as early as February when Vice President JD Vance proclaimed on X that “judges aren’t allowed to control the executive’s legitimate power.” Those judges include the chief justice of the U.S. After John Roberts declared in a May public appearance that it is the job of the judiciary to “check the excesses” of the executive, Vance judged him “profoundly wrong” because that’s only half his job. “The other half of his job is to check the excesses of his own branch.” Vance, no doubt, believes Roberts has failed to fulfill this half of his job. He’s right.
No man is more responsible for the precarious situation in which the federal judiciary finds itself six months into Trump’s second term than Roberts. Trump may have lit the match with his eruption of executive actions, but Roberts, due to his neglect and carelessness, allowed the wood and detritus to build up until the smallest spark from any quarter would set it aflame. Instead of trying to put out the fires, he has, through his fecklessness and diffidence, encouraged a legion of judicial arsonists.
Roberts’s hands are singed from his own matches. For years, he has sought to “depoliticize” the Supreme Court. Yet he has been so transparent and cack-handed that he has only plunged it deeper into the political mire. If the courts no longer command the respect as impartial arbiters they once did, “what Roberts misses is that he has exacerbated these problems,” posited one of his sternest critics, the constitutional scholar Josh Blackman.
If the chief justice truly cared about maintaining the prerogatives and station of the federal courts, he would have already brought (or at least tried to) the lower courts to heel via such available tools as mandamus and case reassignment, using them as exemplary punishment. He and his colleagues could also make TROs appealable. “Resistance” judges have been abusing them because they know TROs usually can’t be appealed, precisely because they’re temporary. Instead, he dithers and proffers bromides about the “normal appellate process.” Roberts can be as offended by the thought of impeaching judges as he likes. If he wants the courts obeyed, the first thing he should do is make them obey themselves. I don’t know if I’d go so far as the legal commentator Margot Cleveland, who indicted him for enabling a “coup by court.” But he’s also done little to prevent the judicial usurpation.
Perhaps, though, there’s nothing he can do. After all, Roberts and co. spent months overturning one anti-Trump ruling after another. Then, they declared judges’ favorite anti-Trump measure out of bounds. To many observers, the message would be unmistakable. Is it his fault that “resistance” judges have chosen to play deaf and dumb? By deed and word, they’ve repeatedly shown they don’t care about such niceties as decorum and the law. They don’t seem to care about much at all, save getting Trump. So maybe Roberts has done all he can, and it’s just that what he can isn’t very much. If that’s true, the malady is even more acute than it appeared on initial diagnosis. Because at that point, curing the gangrenous limb becomes impossible, and it must be lopped off.
Article III is backed by neither guns nor money. It’s always been an open secret that its power and authority depend on the sufferance of the men with guns and money. We are not there today and won’t be tomorrow, but we may not be too far removed from the day when we put to the test the proposition of how much power and authority it has when the men with guns and money no longer give that to them. Jackson correctly noted in her CASA dissent that her fellow justices are fostering “a culture of disdain for lower courts.” But it’s the lower courts themselves that created it.
THE STATE OF THE CONSERVATIVE LEGAL MOVEMENT IS STRONG
Alexander Hamilton famously deprecated the judiciary as the “least dangerous branch.” Yet it’s hard to dismiss a branch that helped precipitate the Civil War, sanctioned and prolonged a regime of civic injustice that war had been fought to destroy, authorized the imprisonment of tens of thousands of Americans because of their ancestry, and turned abortion into arguably the most contentious political issue of the post-WWII period, as “least dangerous.” Republicans and Democrats in their own ways have come to perceive this. This is why court-packing is now part of both their agendas. For this reason, one thing seems certain: Article III’s place in our constitutional order is going to change. The only questions are how and when.
The answers may well depend on how the Supreme Court manages the conflict between Trump and the lower courts for the remainder of his term. Based on the foregoing, it is hard to avoid the conclusion that it will almost assuredly be an exercise in damage limitation. A dispiriting outcome, perhaps, but one that may now be beyond anyone’s power to stop.
Varad Mehta is a writer and historian. He lives in the Philadelphia area. Find him on X @varadmehta.