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Universal Injunctions and the Politics of Restraint
In this episode, legal experts Ethan Boino-Dimiscuita and Samuel Bray discuss the Supreme Court's ruling in Trump vs. Kasa, which limits the use of universal injunctions that allow federal courts...
Universal Injunctions and the Politics of Restraint
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In Trump vs. Kasa, the Supreme Court decided a technical question of judicial relief that
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has big implications for the separation of powers, the role of the courts, and executive power.
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The court limited what are called universal injunctions, where a federal court invalidates
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executive action everywhere, not just for the people who brought a case.
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What is the legal justification for this decision?
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What are its practical consequences?
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Why did it happen now?
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And what are the political implications and maybe even political causes of the ruling?
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What does all of this tell us about future battles between the executive and judicial branches?
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To try to find out the answers to those questions, I'm here with two of my colleagues at the University of Chicago,
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Ethan Boino-Dimiscuita, the Dean and Sydney Stein professor at the Harris School of Public Policy,
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and Samuel Bray, a professor of law.
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Ethan is an expert in politics and political economy,
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Sam is the leading scholar of the law of equity.
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I brought them here to get a handle on this decision, and as you'll see,
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we approach it from several different angles.
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Technical legal questions, institutional politics, and judicial strategy that take us to some interesting places.
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And if you want more Supreme Court content, check out my other podcasts, divided argument,
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an unscheduled, unpredictable Supreme Court podcast that I record regularly with Professor Dan Epps,
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available wherever you get your podcasts.
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And now, have a listen.
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Ethan, Sam, thank you both for joining me.
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So today, the main focus, the conversation I want to have, is something the Supreme Court did a couple of months ago.
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In this case, Trump versus Kasa, or a sort of ruling about so-called universal injunctions.
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Let's try to understand what happened, what we should think about it, and what it means to the bigger picture.
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So Sam, you are, I think, excited by name more than once in this opinion.
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So maybe you could just start by telling me and telling us what it is that the Supreme Court did.
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So the key backstory here is a decade of change in the federal courts.
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So from 2015 to 2025, District Courts gave what were called universal injunctions,
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or nationwide injunctions, or national injunctions.
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And these would be decisions by one court that would control how the federal government would act toward everybody,
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not just toward the parties who sued.
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So that was a big reset on the relationship between the executive branch and the judiciary,
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and also had implications for the relationship between the lower courts and the Supreme Court.
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So lots of changes in that tenure period.
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And in Trump's Vikasa, which is a case about President's birthright citizenship order,
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the Supreme Court said no more universal injunctions.
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So we're not doing those anymore.
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We might be doing things kind of like him, but we're not doing those anymore.
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And that brings to an end a really important chapter of change in the federal courts.
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And so what is a universal injunction, and why are we not doing it anymore?
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So what is it is usually when you sue and you win, you get a remedy for yourself.
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And universal injunctions are when people sue the government, and they win,
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but they get a remedy not just for themselves, but for everybody in the country.
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So that has the effect of one district court in one place in the country can give a decision
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that controls the legal question everywhere.
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So why are we not doing them anymore?
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There are several layers to this with the court settled on as the main reason is the basis for authority
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for the federal courts to act, especially a statute that gives them their sort of charter for being,
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does not give them the authority to give these.
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It only gives them the authority to give traditional remedies given by courts of equity.
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These are not traditional remedies. You look back to the history. You don't find these.
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So you can't do them now.
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That's the core of the argument, but there are other layers to it, including the policy effects.
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I guess that's the next question to bring out.
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So one way to think about this is this is the kind of question only a lawyer could care about,
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is what does some old statute say, but whether or not you can do this,
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and with eyes totally blind to the world, the court just looked at the old statute and said,
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this is what's going on.
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It seems like there might be more going on here though, at least like there might be another way to think about it,
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which is, you know, is this a good way for the courts to rule for them to issue broad relief?
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So does that come into it as well?
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It does. And I think I'd wanted to distinguish three different ways the person on the street should care about these.
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So first, you can care about them because of the particular government policy being challenged.
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So in this case, what was being challenged is President Trump's order that purported to say some people born in the United States
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do not have citizenship, the birthright citizenship board.
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So you can care about it because of the particular issue.
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And so when you have a Republican president, you might care about it because you don't like what the Republican president's doing,
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or you do like what the Republican president's doing at the same time.
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So one way to care about it is at the level of merits, but the Supreme Court's decision takes these universal junctions away,
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no matter who the president is, whether you're challenging Democrat or Republican.
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I think there are two other important policy layers here.
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So one is about how the courts do their best work.
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And they do it deliberately, they do it slowly, they do it not with the first court that gets to decide, gets to decide it for everybody.
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So that's something even a nonlawyer could care about, but it's still a kind of lawy early thing.
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The other layer on the policy here is about democracy.
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And the way democracy works is the elected branches, as long as they're working within the constitutional confines, get to do what they want, whether it's good or bad.
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And so a lot of the things universal junctions were stopping, were things that were in that category of within the constitutional confines,
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but might be bad, might be good.
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And so having universal junctions meant whatever the president wanted to do from Obama, through first Trump administration,
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through Biden, through second Trump administration, got shut down.
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And that's not good for our democracy.
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You think there's a reaction to this?
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Sure, yeah, I think there's obviously a lot there.
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So I guess I have, I'm not a lawyer, I care about it, I guess.
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So I guess I have a bunch of different thoughts and reactions.
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So one is just sort of why should we care and how we should think about the background facts here.
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So the background facts just presented were really about inside the courts.
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And I think the other important sort of background fact in American politics, that the facts about the courts, the increasing use of universal injunctions is about creeping imperial presidency.
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So the executive branch increasingly acting in fairly unilateral ways unchecked by the legislative branch, perhaps arguably without authorization from the, from the legislative branch.
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And this is also, I think, a bipartisan issue, we see increasing use of executive orders in the like across administrations.
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And certainly I thought I think really illustrated very dramatically by both Trump administrations and the Biden administration.
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And so I think in some ways the courts are also reacting to the executive branch running ahead of what we are accustomed to the sort of the executive branch being authorized to do.
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And so then you see these district court judges making these sweeping, sweeping kind of interim decisions in reaction to the executive branch.
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So I think in thinking about sort of the downstream democratic consequences and the downstream policy consequences of the decision you have to think about this balance of powers, game being played between the executive branch, the judicial branch, and the increasingly absent legislative branch.
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I guess the other piece that I think it's worth talking about here and thinking about is, I think interestingly, the Supreme Court said this thing about we're not doing this anymore.
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That is the role, there's some background thought, right, that the role of the courts is case by case, planted by planted, whatever to make these decisions. And we are not supposed to contract, say maybe just Jackson's dissent, we're not supposed to be declaring the law for everybody.
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They said we're not supposed to do that unless we are the Supreme Court.
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So the Supreme Court reserved for itself, still the right to act in this kind of universal way, it seems.
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Just as Kavanaugh in particular seemed at pains to reserve that right in his concurrence.
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And so I think that's an interesting tension, an interesting question about how much this is a principal decision, how much this is a political decision.
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I think there's lots of interesting kind of political economy and institutional questions about what exactly is the Supreme Court up to here in their relationship to the executive branch.
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So both these are things I want to get into and maybe we can start with the first one, which is, and maybe there's no good answer to this question.
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But when did this start?
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So it seems like as you've sort of implied that we're in an era where it's very common for presidents of both parties to have a whole legislative agenda that they get elected and instead of, I mean, some of my past, but a bunch of it they just do.
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And you find lots of statutes and agencies who can do it.
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And I think this came up with the argument, just as Kavanaugh said, I get it, I used to work in the White House, presidents need to get stuff done.
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Is that an, is the, is something about it new, maybe in degree and kind, is it, you know, the extent of kind of exactly being allowed also new?
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And if so, I don't know, if there's probably not a magic moment.
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Yeah, I mean, my read of this is, and I think presidential scholars disagree about this somewhat, but that it's cyclical in American politics that we have periods of impurities, presidencies that then get pulled back in various ways.
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FDR obviously, I mean, issued more executive orders than even president Trump.
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We had a big period of retrenchment on this after the Nixon presidency and a whole slew of Congress decided to try and reassert itself.
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And we had a slew of post watergate reforms that were various attempts to reign in the executive from my reading largely failed.
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That is, there was a lot of legislation, a lot of new rules for the executive branch, a lot of new rules about congressional oversight that like briefly some of them had an effect.
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And then I think kind of starting really even with the Reagan presidency, presidents, you know, the energetic executive is sort of one of the founding thoughts and the energetics executive is, is energetic about finding ways to act because presidents want to get things done.
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So starting with Reagan and then I think growing over time, maybe with the W Bush administration and certainly again with Trump and Biden found new ways to once again reassert kind of executive unilateral executive authority of a variety of sorts.
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So I think it comes in cycles and American politics and I think an interesting question is whether post Trump or post that Biden Trump and with a change in the judiciary's stand, whether we're going to see Congress maybe rouse itself to think about these things again.
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Let's not get overly optimistic.
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And this may just date sort of about when I entered academia, but am I imagining that there could also be like a little bit of an inflection point in the middle of the Biden administration or the middle of the Obama administration that you have an early period of the Biden administration that's pursuing legislation, the Affordable Care Act working on comprehensive immigration reform.
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And then you have sort of congressional breakdown and you have right.
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Right. I have a pen and a phone and that's some of the early wave of universal junctions seem to start a response to things.
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The bomb administration is doing that then continue to Trump to then continue to Biden to then continue back to Trump.
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So Sam, would you buy this story and if so, does it, I don't know, does it suggest another, you know, does make a question the decision?
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Can we say look, equity should take account of the fact that Article 2 has changed or if Article 2 hasn't changed, the practice of Article 2 has changed.
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The presidents are doing a lot more than they used to and so equity has got to rise to the occasion.
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I do buy the story and I think it's operating at both the level of more sort of presidents, but also more some longer congresses.
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So that's, that seems clearly clearly to be the case, especially for congressional majority of the same party as the president.
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So there's very little check right now.
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So I think that's true. And in fact, my, my guess is that this might have been why it took so long for the court to get rid of the universal injunction.
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So there was, there was 10 years where the court was being besieged with interim order docket requests and district courts were stopping whatever the president was doing and justices from appointed by both parties were saying this is not the way it's supposed to work.
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But nothing was done. And I think the reason, or at least one reason, was probably precisely this sense that if the presidents are doing more than they're supposed to do, there needs to be a check.
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And if the checks not going to be congress, the check needs to be the judiciary. So I buy it to that extent.
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Can I ask you on that?
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Yeah.
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On the critics of the court of this decision from the court, I think would say the reason that they did it now, as opposed to five years ago, is ideological sympathy with the Trump administration from the Jordan and ideological opposition to the Biden administration.
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And so they wanted, they wanted the district courts.
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They wanted in particular sort of, you know, shopping for judges and going to Texas and getting the Biden administration stopped.
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They liked that. And when it came to them overruling Trump decisions by shopping for judges, they didn't like it.
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Is that, you think there's anything to it?
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So I can't 100% rule that out, but it's also important here that the story is not the court allowed universal injunctions under Obama and then in 2017 got rid of them.
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They allowed them through the first Trump administration, through the Biden administration.
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And so maybe there's something to that.
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I think there was also, I think there are a couple other things going on.
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One is there might have been support for coming up with some kind of compromise, but it's really hard to come up with a compromise.
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And as the years go on and the lower courts can't come up with some kind of compromise to just have universal injunctions in the really bad cases.
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Then partly because of form shopping and picking out your judge, it's very hard to pursue.
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You're going to be able to persuade the judge that this is one of the really bad cases.
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So the compromise solutions don't work.
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I mean, the compromise solutions don't work.
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Then the court may feel backed into it's got to be all or nothing.
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So maybe that's part of it.
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But who knows.
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I also feel like the question is the sort of goes to your second comment about the court reserving for itself the ability to go universal.
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The Supreme Court is a little differently situated here because when the Supreme Court decides a case, that's a precedent everywhere for the whole country.
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And when a lower court does decides a case, it's not a precedent for the whole country.
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And so the Supreme Court in this sense doesn't need universal injunctions.
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It's the only court that doesn't because it can have universal effect through its precedence controlling at least the lower courts in a way that the lower courts can't.
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So the lower courts need universal injunctions if they're going to go big, but the Supreme Court doesn't.
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Was it clear before this case that that was true for these kind of interim injunctive decisions from the Supreme Court?
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Like my sense was like the Supreme Court is also kind of creating a novel kind of precedent here for these shadow docket interim decisions.
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Well, yes, that that I think is still a unclear question is what the presidential effect of the shadow docket.
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But so it's like clear it's clear once the Supreme Court rules on the merits that it's universal.
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But now they've reserved themselves the right also for the interim period until they ruled on the merits to declare law for the country or at least that's what Kavanaugh seems to exactly.
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But I don't think Kavanaugh speaking for the majority there.
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And I think there's I don't think it's an accident that you don't have the other justice join that there's a range of different.
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So just make sure we unpack this right so one thing that's extra odd about the decision is it comes up technically in what what someone call the Supreme Court shadow docket.
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Well, we're now going to rebrand as the Supreme Court's interim relief docket more ideologically neutral term.
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It's also not the shadows anymore right and so and that's going to the speed of these that's that's where a lot of these decisions come from.
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The Supreme Court has said in various ways well, these are technically not presidential like our like our regular merits decisions because they haven't been argued in the same way, although sometimes they are argued and sort of written as if they're as if they are.
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Right. And so now we have a this is also an extra institutional piece of the story with more you know, ladders like a faction more Supreme Court rapid action.
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And then now maybe with the Supreme Court is saying or Justice Kavanaugh saying whenever the Supreme Court rules that'll still be at a fact the nation-wide adjunction.
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And so all that's really at stake in these rulings is how much power the district courts get in the two and a half hours it takes before the Supreme Court gets it or the two and a half months before the Supreme Court gets it or in the case of the Supreme Court doesn't take is that that's sort of what even second question is coming to.
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I think there's a rule divide on the court on whether hurry up and decide by the Supreme Court is good or bad. So several of the justes have written opinions saying it's not good for us to have to hurry up and decide all these questions without proper briefing and decisions from lower courts and trials.
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So this is more the gorsuch Thomas line I take the bear at majority opinion is being more in that vein and then the Kavanaugh concurrence says no don't worry will still hurry up and decide for the whole country very quickly.
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And that seems to me one of the big fault lines within the majority it's not worked out in the case and it's one things we're going to have to wait and see what happens.
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I think like one of the interesting things about the politics of the court like we're going to I think we'll learn something as we see the coalition scum together.
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In this case justice Kagan says I can't believe we're making this big decision these big decisions without briefings and yet you might also.
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You I could imagine a world in which justice Kagan and justice Kavanaugh end up on the same side of does the Supreme Court have I mean if there's an interesting will there's an interesting kind of politics versus ideology.
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I don't know thing that we're going to learn about as we see what coalitions emerge on this question of whether or not the Supreme Court.
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Can in the interim as opposed to the final merits create universal rules of the country.
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And that's I mean to get back to that's one of the issues in this case too right is that here is the court saying in this case there you know it's only the abstract question of is their universal relief.
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When in some ways the big question is you know can the president strip you know change the rules for both right citizenship for you know contrary to a lot of people thought they were.
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And the dissenters were willing to say no we should we should answer that question right now you know we know enough to know this whole thing is a lawful so why aren't we answering that question.
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It's even more sort of hurry up and decide.
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I mean it's and I think you see all the strategy right the government because they know they're going to lose on that very right sort of deliberately did not ask the Supreme Court they did not in fact.
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Right appeal the interim order for the right for the for the actual case at hand they only brought this question of whether or not we can have universal injunctions and so because.
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They I think they know on the merits they're going to lose but they can they're going to get they're going to get a long time of getting to enforce this at least in a few places which I think.
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Speaks both to this I mean to this question about should the Supreme Court step in and also I think raises other interesting questions about this we used to have where we had this problem before and shopping at the level of people going to see the judge who didn't like what the government was doing to.
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To get over and now we're going to have a world in which different jurisdictions have as we've always had of course in variety of ways but different jurisdictions have different understandings of the legality of the things the executives doing and we might see for example sort of enforcement shopping by the executive where we don't have birthrights had a such a at least until the Supreme Court rules in.
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Texas but we do in California because the district judges are going to rule differently in those places and that so I expect on the particular issue of birthright citizenship that the executive orders never going to go into effect it's going to be stopped through through multiple different devices but I do think there's a there's a key difference between the hurry up and decide on the scope of the injunctions and the hurry up and decide on birthright citizenship because even though I'm a skeptic of the.
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Universal injunctions I don't think they're good there's not been before Trump Vicaça a clear Supreme Court decision rejecting them. On birthright citizenship there's the practice of all three branches for a century so it's not hurry up and decide it's like hurry up and stand pat with what we've been doing for a hundred years before an executive order try to change it which is a very different kind of argument against.
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Accelerated judicial decision right and you can imagine a world where one of the failed compromises was to say well you can't have universal junctions unless.
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The executive action violates clearly established law and then it makes sense to have it.
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Then as all lawyers know what laws clearly established quickly becomes unclear because everybody will have some argument that this is not quite the same as it was clearly established and so you end up sort of that we started and that that world might have worked if you didn't have the height and judicial polarization and the easy for.
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So I think that's a very important form shopping once you combine those two you can find the judge who thinks it's a clearly a violation of clearly established law pretty easily.
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I guess I'm on this I guess I'm not a lawyer so I'm going to ask those of you who are to help me understand this I think there is a question for the non lawyer about how much is really changing here and you alluded to this slightly so the decision does leave open.
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A bunch of paths for the same outcome at the district court level through different mechanisms so they don't they talk about class actions they talk about state sovereignty claims to other kinds of mechanisms where you might be able to get universal relief
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through without universal injunction I guess and I guess my my reading of the Thomas and Alito concurrences not joined by anybody else was they were kind of it pains to say yes that's true but we're not going to let you and the fact that other or we want you to take really seriously there's big restrictions on those things nobody else join that are we are we just headed towards like they've said you can't do these universal injunctions but we're headed towards there's all sorts of other ways for the right to do that.
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So I think that's unclear because there let me let me let me distinguish two different alternative avenues to get to broad relief and I'm going to have to use some lawyer speak but but hopefully hopefully not any that will exceed the legal limit for driving on a podcast.
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I'll tell you if I don't know any of the okay so so one is the administrative procedure act says that you can challenge government regulations from agencies and there's some language about courts being able to set aside those rules now the question that's a big question about whether that allows them to give universal relief that's hotly debated the court couldn't touch that in this case because it would split the majority and then you wouldn't have a majority.
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But that's different because if the APA does allow that and I'm skeptical but if the if the APA the administrative procedure act that statute does allow courts to give universal relief against agency rules then you at least have congress's validation of it and so there the court would have to be going against Congress and that's not something courts like to do as much.
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The other alternative avenue is class actions so you get a whole bunch of people altogether so is a class this is happening in the challenges to the birthright citizenship order and I think the court saw those is just different because they've got a much better historical pedigree and here's a key thing you get the whole class together and the class soos and the class wins or the class loses the same rule applies to everybody.
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And with universal junctions it was different because you could have six people sue all of them lose and then one person sue and wins and then that's the that's the case that controls the federal government everywhere so there's this this asymmetry that the government has to run the table and so that's going to be gone so I think you're still going to see broad relief what happens with the administrative procedure act is a big question you're still going to see broad relief through class actions but it's not going to be a big question.
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But in every case it's going to be fit within the legal rules better and it's going to have this this proper scope that everybody wins or loses together which is the way it's supposed to work.
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So I feel this happens a lot in the law and I never quite know to think about it where people try to do a new thing in a new way and then the swing or comes in and says oh you can't do new things in new ways you can only do new things in old ways.
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So you have to do the new thing in the old way and then there's always a little bit of question was like well what is it stake in telling people you have to do this new thing in an old way rather than a new thing in a new way and maybe you say I'm just a legitimacy maybe it's just that it sounds much better and we're legitimate when you can say it's a new thing in an old way so in a way it's old or maybe there are actual concrete stakes because once you do the thing in the old way a lot of old precedents we establish but the old way we can use here too and those will sometimes limited and sometimes not.
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But we have a sort of better established framework for when the new thing is okay when it's not and I feel like we're in the which of those worlds are going to be in there are cases about class actions it's a whole subject to silver seizure and so maybe now the main thing we learned as well we get to take all those old cases and sold fights you've been having which at least gave us some framework when these are okay and not we get to bring them over or maybe the framework won't really apply so really you just do the same thing but we'll have a new more legitimate name and so it'll be better.
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I mean I think the reasons for this in general are two you mentioned legitimacy and you can think of that just as rhetoric like how can how can judges hide the ball on what they're doing but I think a deep anxiety for judges is how is what I'm doing different than what Congress does and Congress can just wake up and say let's have a new rule let's have a new statute let's do something new today but judges like part of what they do is the right way to do it and I think we know what's going to happen is there's a lot of things that we can do and we can't go to the other way but I think we can't do this.
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what makes them judges is that they're deciding based on the law you already have.
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And sure they do new things, they come up with new decisions, they extend the, but they
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do it by saying, like you said, well, it's the old law that made me do it.
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So that I think that's part of it.
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And then I also think it's just a way of managing the complexity of the law.
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So the decision costs are high.
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You keep your number of, your number of boxes are category smaller and you fit new stuff
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in them, rather than constantly having new ones.
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And I think that helps individual judges and also the coordinated activity of all the
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judges to go.
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Oh, so, okay.
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So less time I lose my membership in the political economy, a society.
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I am sure it must be true that judges are thinking about these kind of inside the law issues
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they're socialized and professionalized to think that way.
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I do think it is hard to look at this case and the way the decision is crafted, the fact
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that such a long decision was written at all and the way argument went and not think that
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a significant part of what's going on is that the court is negotiating its relationship
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with the executive branch.
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That this is really a balance of powers.
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They're thinking very hard about the balance of powers, not just what courts do, but
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their relationship with the executive branch and maybe this administration in particular.
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And so I think that's, it's hard.
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And translate it.
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So what are they doing?
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What are they really doing on the model?
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So okay, a few things.
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So one is, I think like there's an interesting question about whether or not this decision
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on the one hand, you've taken some power away from the from the courts.
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You've said these, right, that that lower courts can't make these universal decisions.
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And so that looks like maybe a weakening of just the scope of judicial power.
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On the other hand, you've also said the Supreme Court can, the Supreme Court has exerted
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this vertical control over the lower courts and can make these universal decisions.
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So maybe that looks like consolidating power in the Supreme Court.
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You give the Trump administration at least a temporary win on an issue where I think everybody
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thinks they're going to lose on the merits, but you give them a temporary win.
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You consolidate some power in the Supreme Court.
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And during the course of doing so, they extracted some of course non-binding, but they extracted
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some promises from the executive branch or at least from this administration, right?
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They made, they had this whole conversation about, you know, if you keep losing at the
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district court on this issue, are you never going to come ask us so we never get to say
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and this is, you don't know, we're going to come ask.
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And they also, right, assert essentially, they assert and demand a concession that if we
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make these kinds of rulings, you'll listen to us.
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And so it looks to me like they're doing a lot of negotiating the role of judiciary relative
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to an increasingly powerful executive branch.
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And it looks to me like their strategy is become a more unitary judicial branch as well.
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Take a lot of the decision making authority and power in the judiciary and make sure it resides
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in the Supreme Court where they can act strategically and deliberately as opposed to scattered around
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the district courts where God knows what's going to happen.
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And then saying to the executive branch, look, we can do business together, but there are
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some things that still belong to us and you're going to say out loud that they still belong
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to us.
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It all seems to me that they're very tied up with thinking about the balance of power.
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And this, I take in this context also the fact that there have been so much, such a
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way of universal injunctions against so many things that Trump administration has done
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and that the term administration has a better record in the Supreme Court or part of the
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story.
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So you're saying to the administration, look, you're losing in all these courts, you're
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threatening to impeach judges and defy them.
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And so we'll make you a deal.
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You know, we'll rein them in, but you got to listen to us.
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So we'll tell you some of these, you've really got to listen to.
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And when we say you've really got to do it, but otherwise we'll give you some.
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And this wasn't the only interim decision, right?
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The Trump administration went on a lot of interim decisions this, this, this go around.
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The Biden administration also had a reasonably bad record.
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I guess the district courts and a good record at the Supreme Court on these things.
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So which is not a surprise given that the president gets to decide which cases to take
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to the Supreme Court and this accelerated posture.
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So I agree with that.
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I think there's a delicate dance between the executive branch and the judiciary.
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And for the judiciary, it doesn't have the power to enforce its orders.
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So it relies on public acceptance and non-flagrant resistance by the executive branch.
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And so you can easily see this case like the part of the why now, part of the why just this part of it and not the birthright citizenship.
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The Supreme Court is giving this administration some wins and some losses.
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The wins keep it on board with adhering to Supreme Court decisions.
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The losses provide backstop for the law in the cases where the government loses.
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And I think this is attractive in within that story, this case is attractive for the court in two ways.
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One is it's a win for the government, a big win for the government, and for presidents generally,
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because I mean Biden wanted this too and Obama wanted it.
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It's a win for the president that aligns with the principles of the majority of the Supreme Court.
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So they don't have to change their principles to be able to decide the case this way.
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And then second, it slows down the pace of things coming up from the lower courts.
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So Professor Jack Goldsmith has referred to the temporizing move by the Supreme Court and to slow things down and to wait.
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And this is in line with that.
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Universal injunctions with emergency appeals to the Supreme Court is the opposite of temporizing.
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And so this is this I think helps with the temporizing.
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But only if the Kavanaugh concurrence is not where the court lands.
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Because if it is, then it's like hurry up and decide now.
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Right.
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So on this prediction, there will be things that the administration loses.
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I guess we've speculated that maybe the ultimate lose in the merits of the Supreme Court citizenship,
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the other things.
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And that there's some things going to be in the in the law.
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So maybe they haven't come yet.
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Maybe that's the credit the courts buying now.
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But that's sort of the idea.
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Yeah, exactly.
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I mean, so yeah, I think some the Supreme Court needs to be able to,
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yes, the Supreme Court needs to be in a position to rule that plainly unconstitutional things are plainly unconstitutional and not expect that to result in the executive branch simply ignoring the Supreme Court.
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That's a catastrophe.
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And do process before you can be deported from the US.
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Two terms as all you can be elected to.
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Can't remove the federal reserve chair.
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Things like this.
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So I guess so, you know, many people have criticized this decision and the court generally for sort of not doing enough to stand up for the Trump administration.
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So I guess on this strategic picture though, one question to be suppose you wanted the court to do as much as possible to stop the Trump administration.
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Would you have wanted it to do more than it did here?
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Like, you know, could the court have gotten away with being more aggressive or do we think they're already actually pushing the margin as far as they?
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I think it's a really interesting question.
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I mean, I think there is no reason I think to expect that there's a bank account of credit that the Supreme Court accumulates with President Trump, such that
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if he wins today and loses some worries, like, well, you know, 50.
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That doesn't strike me as either like a sound analysis of his character or a sound game theoretic analysis of the politics these things.
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So I don't know that the court is right to think that by making some concessions here a year from now,
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they're going to have won some credibility with the administration that lets them do things they otherwise could not have done.
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Which isn't to say that I think the Trump administration is in fact ready to outright defy plain, spoken, constitutional decisions from the Supreme Court.
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I don't know that they're ready. I just, I am a little skeptical of the, we're engaged in a kind of dynamic bank account where we, we, you know,
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we're getting a balance of zero with the administration by giving them some wins now for some losses later.
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I don't know that that analysis is right on the politics.
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So one mechanism that could happen, which again, maybe totally wrong and it's just speculative, would be, you know, there are also lots of different people in the Trump administration.
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So you could imagine it's often it's the Silsir General of the United States who makes the like line decisions, what to appeal and what not to and as a show up at court and make these concessions.
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But, you know, the extent to which the Silsir General of the United States has swayed in any given administration is contingent.
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Some, some presidents would say, look, if the Silsir General of the United States promises the Supreme Court, like I would never want to go against that.
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Another one might say, you know, I'm happy to fire him tomorrow if that's helpful to the political agenda.
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So you could imagine that I'm going to go with President Trump being in the latter camp.
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Because I, it seems like a sound guest.
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To me, but I do think also the Supreme Court is, they are not just negotiating the relationship with the Trump administration.
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I think they are making decisions about the long run.
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Right.
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They see their, their role is making decisions about the long run.
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You could imagine cases like this mean that it's mean that the bank account is the political capital of the Silsir General's office.
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The now in the Silsir General office is in a meeting and says, you should let us appeal these.
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Because like we are pretty good chance.
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The court often rules for us that they get listened to more often.
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Now, maybe after one loss they get listened to again, but maybe they get sort of more, you know, more standing.
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I don't know.
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Who's that?
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Is that too imaginative?
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Who I think it's, you know, the negotiations inside the administration, I think are pretty opaque.
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Yeah.
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It's hard to know.
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I mean, I, which is to say like, I think, you know, I would be shocked to learn that the court is not thinking hard about the politics and have their own theories about the administration and about future administrations.
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I don't think it is easy to see into all of that balance of considerations.
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I think the politics are really quite complicated.
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And also like when we start talking about, you know, legitimacy in the Supreme Court rests on the executive on them, but also something about public opinion and their prestige and what would be the cost to the president to find the Supreme Court.
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You know, they are, they are, they're not just one audience.
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They're not just inside the administration.
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There's not just one audience, but, but the public's view of the court and the public's understanding of the court's role in the balance of powers.
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As I think also an important consideration here.
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I am a little surprised that the court did not signal that the executive order on birthright citizenship was unconstitutional because it did seem like connecting the two giving the court, giving the president the big win on universal injunctions and combining it, bundling it with the loss on the birthright citizenship order was was was was was teed up.
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So they could have done that.
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But that goes to those opaque.
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How kind of normative would have that have been like if if if if the decision had had gone that way and had had at least sort of nod in towards and you know preparing the administration and signaling the public what we're not going to really allow this, but it's not time yet.
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We have to wait for the decision on the merits.
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Is that the sort of thing that would be viewed by legal professionals in the like is the Supreme Court being out over its skis.
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I mean there'd be there'd be debate about it like on the one hand you could say well that's not necessary to decide this case that's not that's not fully briefed or whatever.
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So you could have arguments that way.
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On the other hand the court has a number of different ways it can do this it could say.
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Well we recognize this is against the backdrop of a longstanding practice of birthright citizenship that all three branches have agreed to.
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But the merits of that are not precisely presented to us in this case and so they could basically indicate that they thought it was settled ball and an executive order can't override a statute.
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Can't override a Supreme Court decision.
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So there's so they they as a matter of legal craft.
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It would be a subject of controversy but it is within the zone and pleasant.
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I think that they wanted to do it in bright red letters than anybody could understand that would almost certainly be counter normative in his legal craft but there's a whole range of delicate ways.
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They're like the things they could do that they didn't ask you one other interpretive question about how to think about that.
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So you indicated you think probably nobody else sort of leaves the majority does not agree with Kavanaugh on the Supreme Court having or at least the Supreme Court should exercise this.
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I mean the chief might agree but I think other people would disagree.
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Of course.
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Of course it's in Thomas.
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I think they could have done I guess I think is made this decision not about the judiciary act but about Article 3.
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Yes right and they didn't they didn't and had they made it about Article 3 it would have been clear that Kavanaugh was wrong.
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Yeah well the reason they so Article 3 is the part of the Constitution that sets out the the powers of the judiciary.
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And they didn't ground it in the Constitution and the reason they didn't is if they had done that it would be harder to put the administrative procedure act question to decide to decide because the administrative procedure act Congress saying.
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Yeah sometimes you can set aside agency rules like that wouldn't be able to override the Constitution.
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So they would have both said the Supreme Court can't reserve this self.
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But Congress and Article 3 power and so it's not a three court and also what it would have said.
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Congress also can and I guess that also makes trouble for past precedent.
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It makes trouble for past precedent.
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It also means they it takes away from Congress's inability to reign in the executive if Congress threw the money.
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Wakes up from its torpor and it also would split the majority because Kavanaugh's already indicated he wouldn't go for that.
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The chief justice probably wouldn't go for that.
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It'd be very hard to get to five votes in this case with an Article 3 holding.
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And so this does leave open the possibility that Congress could say to the courts we want you at least in some domain.
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We want you to get involved in in providing universal relief.
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That's right.
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Now one of the things that's interesting is even though the court couldn't make the constitutional argument from Article 3.
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Justice Jackson's dissent which argued it's the role of courts to declare with the law is for everybody.
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That opened up an opportunity for the majority opinion to counter that and say that's not the role of judges.
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The role of judges is to decide one case at a time.
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All the constitutional kinds of arguments got to be made but they got to be made as a were buttled to the dissent.
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So they're still in there but they're not presented as a constitutional basis for the decision.
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So you think I asked you one last question as we bring this to a close is if you were giving strategic advice to the court.
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Do you have any?
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I mean so if you think if we think we should analyze there in part engage in a strategic game and we talked about what they might be doing
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against what the flaws in it.
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What's their goal?
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Well I guess that's part of the question.
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I suppose their goal is to follow the laws they see it as much as possible, preserve as much of their power as possible
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but not at the expense of the institution and all these things.
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Yeah I mean I think okay so I do think from a purely sort of politics perspective it has probably been
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damaging. I think universal injunctions have been damaging to the judicial branch.
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I think that each time an administration is in office and can't get anything done because of forum shopping
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it hurts the judiciary with one or the other side and in fact maybe with both sides because you then see the judge making this rule.
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I nobody likes it. I don't think anybody I mean everybody likes to win on the policy in the moment but it's just
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I don't think that's a win and so I do think probably the Supreme Court is making a good decision for the judicial branch by
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reigning that in and pulling the authority up to themselves.
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Whether it would be a good decision to go further and say we're not going to be in that business.
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Also that seems more questionable to me because I do think the executive branch enforcing for a long time before
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you actually get an decision on the merits of the Supreme Court to plainly illegal or unconstitutional
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executive orders is also not good for the judiciary because I think the other challenge the judiciary faces
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is the frustration of the American people with what we have learned over several the last several
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years very acutely I think how slow the judicial process is and in fact like the inability of the
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time scale of politics to make decisions on absolutely critical constitutional issues for the for the
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Republic. So I think the judiciary faces this sort of it's not good to have one judge in one
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form shall place be able to shut down the presidency it is also not good that the judiciary seems
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chronically unable to make decisions on a time scale that is relevant for for democratic processes
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and so now they're going to have to balance those two things I do think like there's an interesting
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question about are there are there ways to help the judiciary out in that on that front could
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Congress as we were just talking about could Congress innovate in some ways to allow the judiciary
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to act on more of these things more quickly without it being one district judge who's formed
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shopped and also without it always having to be the Supreme Court which is can't cure that many
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cases could we do something that expedited that sort of a collaboration between the judiciary and
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and Congress I don't you know that's that's hard in current American politics but but I think
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first order it's it's it's probably good for the judiciary not to have the universal
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injunctions of the district court and it is bad for the judiciary that they are so slow to decide
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the most important issues and are many of the most important issues in our contemporary politics.
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Thank you both for the conversation.
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The Battle of the Branches series explores how traditional norms surrounding executive authority
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legislative oversight and judicial intervention are increasingly being tested and reshaping our
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interdisciplinary research the project brings together leading scholars to explore these questions
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with depth and nuance.