Today's Landmark Supreme Court Case Will Rewire American Democracy
The ruling that limits nationwide injunctions by federal judges eliminates another check on executive authority
In the last of its term today, the Supreme Court issued a landmark 6-3 decision that would stop the ability of federal judges to freeze policies across the country, known as nationwide injunctions. It is a seemingly legalistic and wonky ruling on the mechanics of the judicial system that actually has drastic – and dire – implications for the exercise of executive power, the functioning of our democracy, and the protection of basic rights.
So what is actually going on here? The current case sprung from the legal battle over President Trump’s executive order to end “birthright citizenship,” which grants automatic citizenship to babies born on US soil. The 14th amendment of the Constitution is crystal clear on this: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." So when Trump’s executive order on birthright citizenship was blocked in federal court, the administration appealed to the Supreme Court not on the merits of birthright citizenship per se – on which it would almost certainly have lost – but rather on whether federal judges should be able to block its orders and policies through nationwide injunctions.
In other words, this was a suit that was actually about the extent of judicial checks on executive power. The Trump administration came out on top with the justices split along ideological lines, notching another major victory for executive power in today’s ruling. It will have implications not only for issues related to orders currently under injunctions, whether birthright citizenship or funding for schools with diversity programs and more, but also for the ability of the administration to enact its agenda moving forward.
Justice Sonia Sotomayor, writing in the dissent, called the ruling a “travesty for the rule of law.” Her reasoning is compelling and worrisome: “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.”
Breaking this down, the ruling eliminates a major check on executive authority. Anyone harmed by executive action would now have to pursue an alternative – and far more complicated, costly, and narrow – legal avenue in order to protect their rights, namely class-action lawsuits.
In essence, it allows the executive to violate the Constitution among anyone who has not sued to block its actions. That is a radical reshifting of the balance of responsibility for the protection of rights in American democracy. And while under some administrations it would not pose such a grave threat, the Trump administration is bent on overrunning the rule of law and has relied heavily on sweeping executive orders to enact its policy agenda (see my previous post on that).
It is true that the ability of federal judges to issue nationwide injunctions has been a thorn in the side of Republican and Democratic administrations alike in recent years. Litigants seeking to block major policies have brought suits in federal court that can stop policies in their tracks, frustrating presidents. That process has led many of its opponents – who often only complain when they’re on the losing end – to decry the ability of single judges to wield such massive power. There have also been rightful accusations of “court shopping” as cases seeking injunctions are brought to judges perceived to be favorable to the cause of litigants.
Part of why this has become such a flashpoint in our democracy is because of how complicated it is to enact major legislation, encouraging presidents to rely more and more on executive orders. There is also an incredible amount of money being poured into litigation, with enormous stakes.
But while the current system has plenty of downsides, it tends toward policy stability. The new arrangement will again aggrandize executive power. While it provides a legal avenue for aggrieved parties to try to protect their rights, that is in some ways a mirage. Those without the resources and wherewithal to lawyer up could have their rights trampled, even if those rights are enshrined in the Constitution. It is a recipe for potential abuse by the executive branch and a major blow to smaller interests on any policy that might struggle to protect themselves against an executive that is willing to assert its authority in unlawful or transgressive ways.
Leading photo of the Supreme Court by Joe Ravi (license CC-BY-SA 3.0).