I’ll be back with another column covering the ongoing foolishness in our politics tomorrow or Wednesday, but today I have to ask you to bear with me, because I’ve written an uncharacteristically serious column about the SCOTUS ruling in Trump v. Casa, Inc. That’s the one dealing with the dozens of universal injunctions by district court judges who have been trying to stop Trump’s every move.
The underlying case was about Trump’s EO ending birthright citizenship for the born-in-America children of illegals, which I’m afraid he might well lose, though he shouldn’t, IMHO. But the ruling in Casa settled what should have been an obvious point: the US government can’t function with 677 de facto presidents, i.e. district court judges who can stop any executive decision for months or years at a time.
I’ve read the whole decision – written by Amy Coney-Barrett – including the concurrences by Thomas, Alito and Kavanaugh and the dissents by Sotomayor and Jackson, and I’d encourage anyone who is interested to read it, too. As I discovered when I read the abortion and second amendment cases several summers ago, SCOTUS decisions are unexpectedly understandable, even for non-lawyers.
I read this one over the Independence Day weekend, which seemed appropriate, given how grateful I am for our independence and for this ruling!
I’ve found that I can just skip over the citations and look up only the legal terms that aren’t self-explanatory, and I was surprised at how much the justices’ writing reveals their intelligence, discipline and character. The best writers and thinkers on our side are Thomas and Alito, IMHO. On the other side, I think the general consensus is that Kagan is the smartest, Sotomayor is mediocre, and Jackson is embarrassingly bad.
After reading this case, I think Sotomayor did a little better than I expected, and Jackson was as bad as I expected. And I thought Barrett wrote a much stronger originalist argument than I’d expected, and not just because she mercilessly took Jackson’s bizarre rambling apart.
Barrett starts the majority opinion – the initial summary of which is only around 2000 words –at the nation’s beginning, noting that “Universal injunctions are not sufficiently analogous to any relief available in the court of equity in England at the time of the founding.” She then moves forward in time, claiming, “Nor did founding-era courts of equity in the United States chart a different course. If anything, the approach traditionally taken by federal courts cuts against the existence of such a sweeping remedy.”
She addresses the counter-arguments, noting that “respondents claim that universal injunctions are the modern equivalent of the decree resulting from a ‘bill of peace,’” but then cites a bunch of precedents to show why that analogy does not hold. She closes by summarizing the points on which the government must prevail, and demonstrating that they do so, while noting that this doesn’t mean that they will ultimately win on the underlying birthright citizenship question. The key sentence in her conclusion, IMHO: “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.”
The full 6500-word opinion that follows traces the history of universal injunctions, pointing out that they “were not a feature of federal-court litigation until sometime in the 20th Century,” and that they have been exploding since W’s term, when over three-quarters of them have been issued. (And we all know that the explosion of injunctions in the first four months of Trump II has drastically added to that statistical imbalance.)
Her closing: “The universal injunction was conspicuously nonexistent for most of our nation’s history…. Had federal courts believed themselves to possess the tool, surely they would not have let it lay idle.”
Thomas uses a citation-heavy 1200 words to emphasize the need for judicial restraint that this ruling supports. Then Alito’s concurrence anticipates the activist left’s next counter-moves to try to get around this clear ruling. He warns about an expanded view of third-party standing (plaintiffs who aren’t affected by an issue arguing on behalf of others) and class-action filings.
On the former, he says, “Left unchecked, the practice of reflexive state third-party standing will undermine today’s decision as a practical matter.” On the latter,“Today’s decision will have very little value if district courts award relief to broadly defined classes without following Rule 23’s procedural protections for class certification.” (Rule 23 forces plaintiffs to meet specific requirements to achieve a class-action suit, which activists hate, as you might imagine.)
Alito warns that lower courts “should not view today’s decision as an invitation to certify nationwide classes without scrupulous adherence to the rigors of Rule 23.” “Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision.”
Many on the left are already talking about trying both of these tactics, thus proving Alito’s point. Hopefully his warning will rein in most lower courts from trying these end-around moves, though I imagine the most lawless of the activist judges will go for it anyway, being constrained by neither law nor ethics, as they obviously are.
Sotomayor actually lays out a pretty convincing argument that birthright citizenship is constitutional. She relies mostly on the fact that it has been a long-standing precedent, which is ironic, since she and the other “living constitution” supporters only seem to value precedent when it leads to their favored political conclusions. (They made a big deal about the 50-year precedent of Roe v. Wade being overturned, for example, but they had nothing to say about the nearly 200-year precedent of abortion not being in the constitution, until the Roe court “discovered” it in 1973. Not to mention the nearly 250-year precedent that the court shattered in Obergefell, when they “discovered” gay marriage hidden in the constitution. Probably right next to the right to abortion, as well as the pre-emptive prohibition from ever electing Trump president.)
The most striking characteristics of Sotomayor’s argument are her nakedly partisan tone and how consistently she calls for more power for her court. She claims that the English equity courts “unlike this court” “constantly declined to lay down any rule that shall limit their power and discretion.” She says that those older courts “[kept] injunctive relief flexible,” as opposed to the originalists on this court, who want to “freeze in amber” the precedents that they cite. She takes a final shot at the conservatives, saying that unlike the equity courts she claims “delight[ed] to do justice, and not by halves,” this court only wants to do justice “by piecemeal,” which results in “strip[ping] federal courts of authority” and causing a “diminution of judicial power.”
But while Sotomayor makes typical “living constitution” arguments that tend toward giving courts the power to “legislate from the bench,” Ketanji Jean-Pierre goes flying right past Sotomayor in her truly awful dissent. I would warn anyone not to read Jackson immediately before the sober clarity of Thomas or Alito, because doing so could give you the bends.
If Sotomayor sounds like a partisan guest on PBS, Jackson sounds like an unhinged MSNBC host and a high school sophomore had a baby, and that baby was elevated to SCOTUS purely for DEI reasons. Because: yikes!
She comes out of the gate hot – hot, and stupid! – by slandering the conservative majority, saying “The Court’s decision to permit the Executive to violate the Constitution…is an existential threat to the rule of law.”
That’s three partisan MSM talking points in one sentence, and things don’t get any better from there. She constantly begs the question by assuming that Trump’s EO is obviously unconstitutional throughout, even though SCOTUS has agreed to take that contention up in the fall term. Her tone is by turns emotional (she talks about her disillusionment, fear and frustration), heavy on the kind of lefty talking points she started with (describing the court as endorsing “a rule-of-kings governing system”) and light on relevant citations and concrete argument.
In fact, she disdains the originalists’ analysis of whether universal injunctions have analogous precedents in the English courts and the Founders’ Judiciary Act of 1789 as “a mind-numbing technical query.” (Many sane lawyers would call it “establishing foundations.”) She also calls it “legalese” and “a smokescreen!”
She uses inappropriate phrases such as “…(wait for it)…” as if she were me, writing my juvenile mockeries of self-important leftists, rather than a SCOTUS justice! She also seems to not understand the roles of lower courts and SCOTUS any more than she understands what a woman is, because she chides the originalist SCOTUS members for their “dismissive treatment of the solemn duties and responsibilities of the lower courts.”
First, if the partisan lower courts had been taking their duties and responsibilities seriously, we wouldn’t be in this mess! Second, they’re LOWER courts, you dunce! The job of the higher court is to evaluate and often reverse the lower courts. How does someone who went to law school not know that?
By the end – and despite her rejection of English law and our early court decisions which originated from it – she approvingly cites Hypothetical Interplanetary Law. To wit, “A Martian arriving here from another planet would see these circumstances and surely wonder: ‘What good is the constitution, then?’”
Good lord. I guess if an imaginary ET doesn’t like our constitution, we should just dissolve it and then re-establish ourselves as Ketanji-land?
Barrett’s backhanding of Jackson’s ridiculous blathering is unusually scathing, and yet still not nearly scathing enough. She calls Jackson’s argument a “startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever,” and points out that it “[waves] away attention to the limits on judicial power as a “mind-numbingly technical query.”
And she finally does the judicial equivalent of coming off the top rope to slam a metal folding chair over Jackson’s 10-cent head in what has to be one of the most brutal dismissals in SCOTUS history: “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.”
So that leaves us with the smartest of the 3 liberal justices, Elena Kagan, who didn’t write in this case. And her silence is deafening.
Because in a talk she gave in 2022, Kagan forcefully pointed out the danger of district court judges issuing universal injunctions, saying, “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for years that it takes to go through a legal process.”
In fact, she specifically condemned the practice of “judge shopping” to get those injunctions She mentioned that when Trump was president, lefty plaintiffs went to the liberal northern district of California, and when Biden was president, righties went to a conservative district in Texas.
She was obviously right about that, since out of the 95 US court districts, 5 leftist districts have issued something like 35 of the most important 40 universal injunctions against Trump. So Kagan is vindicated, and her clear stance against universal injunctions stands as a brave example of a justice not being swayed by her own personal political partisanship.
Oh no, wait. In Trump v. Casa, Inc she voted against the position she had taken just three years ago, and by not writing a dissent, she gave no reason for the change.
I’d like to say, “I wonder why,” but we all know, don’t we? When universal injunctions are hampering a Democrat president, they are very bad. But when they are hampering a Republican president, they magically become extra super-constitutional and good.
Because on the high court – just as in Congress, and governors’ offices, and mayors’ offices – it’s (D)ifferent when they do it.
Hamas delenda est!
Martin Simpson 