The Supreme Court’s recent decision in Trump v. CASA, Inc. involves the scope of the president’s power and the related question of the judiciary’s authority to check that power, perhaps the most pressing issues in law and politics today.
Much has been made of whether the Court’s 6-3 decision should be considered partisan. All six justices who voted to limit universal injunctions were appointed by Republican presidents while the three justices who dissented were appointed by Democratic presidents. In granting the government’s request to address the validity of universal injunctions—a remedial issue—divorced from the legality of Trump’s executive order limiting birthright citizenship, and then granting the government’s request for a partial stay of the injunctions entered prohibiting enforcement of the order, the Court sided with the administration.
Noted but not explored in the commentary on CASA is the fact that four of the six justices in the majority wrote opinions while two of the three dissenting justices wrote opinions as well. Universal injunctions—defined by Justice Amy Coney Barrett as an injunction in which the district court asserts “the power to prohibit enforcement of a law or policy against anyone” (emphasis in original)—raise issues involving separation of powers, federal court practice and procedure, and individual rights under the rule of law. This article discusses what was at stake in each opinion in CASA.
Justice Barrett: The Importance of Due Process. In her majority opinion, Justice Barrett took a historical approach, focusing on whether Congress ever authorized universal injunctions or “whether universal injunctions are sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act.’” Because the answer to these questions is no, Barrett reasoned, federal courts lack the authority to issue injunctions that bind nonparties to the case before the court.
Justice Barrett was, among other things, a Civil Procedure professor before becoming a federal judge. The through line in her opinion is a due process concern—specifically the objection that a federal court order may not be enforced against a nonparty. Hence this paragraph in response to the “complete relief” in equity argument made by the respondents in defense of the broad injunctions entered by the district courts:
“Complete relief” is not synonymous with “universal relief.” It is a narrower concept: The equitable tradition has long embraced the rule that courts generally “may administer complete relief between the parties.” While party-specific injunctions sometimes “advantag[e] nonparties,” they do so only incidentally (citations omitted).
The Court’s decision raises questions as to how litigation over executive branch policies and orders will work. For example, what injunctive relief may be available now to states suing on behalf of their citizens? Justice Barrett deferred addressing this question and several others. However, other justices in the majority wrote on some of these points, staking out positions for future litigation that inevitably will make its way to the Supreme Court.
Justices Thomas and Alito: We’ve Got Our Eyes on You, District Court Judges. Justice Clarence Thomas wrote a short concurrence, joined by Justice Neil Gorsuch, in which he fired a warning shot at federal district court judges concerned about protecting the rights of those not before the court. “Lower courts should carefully heed this Court’s guidance and cabin their grants of injunctive relief in light of historical equitable limits,” Thomas wrote. “If they cannot do so, this Court will continue to be ‘dutybound’ to intervene.”
Justice Samuel Alito reiterated this view in his concurring opinion, which was joined by Justice Thomas. Alito identified third party standing—which allows a proper litigant “to assert the legal rights or interests of others”—and class actions as procedural devices for district courts to broaden the scope of an injunction. Whereas Thomas made little effort to conceal his iron fist at the prospect of lower court recalcitrance, Alito used more of a velvet glove when he reminded district court judges to “be vigilant against such potential abuses of these tools.”
Justice Kavanaugh’s Practical Guidance. In some of the Court’s most controversial cases, Justice Brett Kavanaugh has written concurring opinions in which he acknowledges the strong views on both sides and aims to put the case in perspective. (Examples include Kavanaugh’s concurrences in Dobbs v. Jackson Women’s Health Organization, in which the Court overruled Roe v. Wade and held there is no federal constitutional right to abortion, and New York State Rifle & Pistol Ass’n v. Bruen, in which the Court expanded the rights of gun owners under the Second Amendment.)
Kavanaugh wrote a similar concurrence in CASA, explaining that class actions and certain cases under the Administrative Procedure Act provide the opportunity for plaintiffs to seek and district courts to award “preliminary injunctive relief” that may apply “nationwide.” Significantly, Kavanaugh acknowledged the need, at times, for “a nationally uniform answer on whether a major new” federal law or executive order “can be enforced throughout the United States during” the “interim period until its legality is finally decided on the merits.”
In addition, Kavanaugh recognized district courts’ need for a definitive, albeit interim, legal determination when plaintiffs seek to enjoin enforcement of a federal law or executive order—and signed up the Supreme Court to provide that answer via its emergency (or “shadow”) docket. He insisted the Court has the capacity to handle the anticipated increase on litigation on its non-merits docket. “Deciding those applications is not a distraction from our job,” Kavanaugh wrote. “It is a critical part of our job.”
Justice Sotomayor: Can We Talk About Birthright Citizenship? It may be an understatement to describe Justice Sonia Sotomayor’s dissent as blistering. (Justices Elena Kagan and Ketanji Brown Jackson joined this dissent.) Unlike the majority opinion and the concurrences, she put the plaintiffs’ claim—the illegality of the executive order—front and center. Her first paragraph cited the Court’s reviled Dred Scott decision to remind the reader of the Court’s error when it previously sought to repudiate the rule that children “born in the United States and subject to its laws are United States citizens.” From there she explained why the order limiting birthright citizenship is patently unlawful.
This matters because, in Justice Sotomayor’s view, the government’s objective in litigating the case in piecemeal fashion—scope of remedy first, without consideration of the merits—was to secure from the Court the holding 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.”
Justice Sotomayor addressed Justice Barrett’s arguments, challenging her account of the relevant legal history and the nature of equity jurisprudence. (Her opinion was easily the longest written by any Justice.) Ultimately, Justice Sotomayor argued, the purpose of the government’s “gamesmanship”—her term—was to limit courts from enforcing illegal executive branch actions. As a result, she wrote, no “right is safe in the new legal regime the Court creates.”
Justice Jackson: “An Existential Threat to the Rule of Law.” In her own dissent, Justice Jackson elaborated on the broader issues raised by CASA: separation of powers, the duty to follow the law, and the nature of the rule of the law. Her most powerful point is that the majority’s decision creates a two-track (or zone) system of law. The plaintiffs who successfully challenged the birthright citizenship order inhabit one zone. The federal district courts’ rulings protect their rights.
However, those individuals subject to the executive order who have not yet sued inhabit a different zone, in which they are “left to the prerogatives of the Executive as to whether their constitutional rights will be respected.” While it is burdensome and may be costly for individuals to sue to enforce their constitutional rights, the risk of bearing those costs apparently must be borne by those who have not yet challenged the order in court. For Jackson, the result is the “degradation” of the rule of law.
Conclusion: Another Formalist Decision by the Supreme Court. Since 2020, the United States has experienced a worldwide pandemic and a violent attack on the Capitol after then-President Trump’s efforts to contest the election results. Now the nation is in the midst of a presidency committed to the most aggressive assertions of executive branch power in our history.
During the same period, the Supreme Court has limited the authority of expert agencies by adopting the major questions doctrine and overruling the doctrine of Chevron deference, expanded presidential immunity from prosecution, and restricted courts’ authority to check illegal policies and orders issued by the executive branch. In the abstract, the Court’s formalist approach in each of these cases provides a reasoned, albeit debatable, decision. In the context of the developments in which these decisions have been issued, however, the Court’s formalism appears to be nothing less than a willful refusal to engage with the consequences of its rulings—ones that pose critical challenges to our constitutional system of government.
