National Injunction, What's Your Function?
No fireworks before the 4th.
Hey everyone, this is your quick update on the end of the SCOTUS term, which wrapped up on Friday. Specifically, it will be about the birthright citizenship case. More importantly: This will be super short and easy to read. (I’ll revisit this sentence after I write the whole thing.)
(O.K., I did and it’s still short!)
The headlines about the birthright citizenship case have me super worried and you seem way too calm.
So, let’s look back at two pieces of writing I did on the national injunction/birthright citizenship case a few weeks ago.
I said birthright citizenship is constitutionally guaranteed and there is no alternative argument.
I also said this after the Supreme Court held oral arguments in the case:
Despite this, I still think there is a scenario where they side with the Administration and chaos ensues. I am with them when they say they should limit nationwide injunctions,4 but I think this case presents possibly the best argument for their utility.
So, that scenario is happening right now. But SCOTUS made it a little better, which will (I think) help us avoid the chaos I assumed would happen.
Wait, I thought what SCOTUS did was bad.
I think everyone has misunderstood the nature of this case, mostly because it is highly technical, but also because anything that touches birthright citizenship is going to cause a major freakout.
Ultimately, SCOTUS said nothing about birthright citizenship and did limit national injunctions, but laid out a scenario where one could persist even if Trump pursues his executive order.
What basically happened is that SCOTUS said a suspension (injunction) of Trump’s executive order wasn’t applicable anywhere outside of the 22 states that sued the Administration. What will have to happen is that the local District Courts will either figure out the guidance for any sort of regional (or even nationwide) injunction, or a class of individuals will have to come together and sue the Administration on their own.
Amy Coney Barrett handed down the decision and she does not say anywhere that nationwide injunctions are illegal. All she says is that courts “likely” do not have the power to put them in place. She does not even explicitly say that they don’t. The decision ultimately limits the national injunction powers while also giving the courts some wiggle room to enact them.
In case you think this is me stepping into my, “Calm down, it’s not as bad as you think” role, here is a lefty writer saying basically the same thing:
In any event, Barrett does not ultimately say whether she finds this argument persuasive, instead concluding that “the lower courts should determine whether a narrower injunction is appropriate” in future proceedings. So the holding of CASA seems to be that universal injunctions should be rare, but they are permissible in some cases, including, possibly, this case.
See? Calma. It’s not as bad as you think. In fact, SCOTUS gave a 30-day deadline for everyone to get their ducks in a row with this case, and people are already moving to certify a class(es).
All that said, I do think we will eventually need a ruling on the merits in this case to put this issue to rest. So, birthright citizenship probably isn’t going away any time soon.
Was Amy Coney Barrett mean to KBJ?
There were a few headlines about ACB savaging Ketanji Brown-Jackson in the decision. KBJ was basically arguing for judicial supremacy: That courts have an obligation to protect people who aren’t parties to a lawsuit and, for that reason, can tell us what the Constitution says.
ACB’s majority opinion drew headlines because she used pretty pointed language to say KBJ is wrong:
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.
Two things, and the first one is easy to get out of the way:
Justices talk to each other like this all the time, so the idea that this is some incredible smackdown is mostly click-bait. Justice Antonin Scalia said that the decision legalizing gay marriage was so embarrassing any Justice signing onto it should go hide their head in a bag. Ruth Bader Ginsburg signed onto that opinion, and she was extremely close friends with Scalia. Sometimes legal opinions are spicy, but that’s it.
ACB is gaslighting a little bit.
I happen to think KBJ’s dissent is wrong, but it definitely was an accepted view of jurisprudence throughout the 20th Century. The Warren Court very much believed in “judicial supremacy,” and practiced it (in a lot of ways, the Court now is a response to that entire period). She is just aligning herself with the Court from that period of history. Most legal scholars (including liberal ones!) do not subscribe to judicial supremacy anymore, but KBJ isn’t making it up.
I happen to think KBJ’s arguments for nationwide injunctions are interesting in this case. Wrong, but interesting. And I have said this before: Whenever a SCOTUS justice says something, it is no longer “off-the-wall,” but it is firmly ON the wall. Clarence Thomas is often the lone dissenter in an opinion and then will cite back to his own dissents in separate cases where he is (again) the lone dissenter. Writing a dissent espousing your own personal legal theory is nothing new for a Supreme Court justice!
And, to the extent people have said this proves KBJ is a “D.E.I. hire,” all those people can kindly get bent. KBJ has experience as a:
Public defender.
Supreme Court clerk.
District judge.
Court of appeals judge.
And she went to an Ivy League law school!
Justice Thomas, on the other hand has experience as a:
Court of appeals judge.
At least he went to an Ivy League law school though. Or are they worthless now?
Hope you all have a wonderful 4th of July. I’ll be back in a couple weeks, probably to write about the One, Big, Beautiful, Bill, , , , , , . Ugh.