Friday's ruling in Trump v. CASA will fundamentally alter the relationship between federal courts and other government institutions. How much depends upon three questions the decision left unanswered.
Legal realism was a very popular theory when I was younger, but this Court does it with a vengeance. (It's the idea that decisions are influenced by personal beliefs and biases rather than simply by applying pre-existing rules.) And the majority barely even tries to apply a patina of consistency or actual application of the law; it all looks results oriented.
I call it "Through the Looking Glass textualism". The words mean exactly what they want them to mean, nothing more and nothing less. And they don't have to mean the same thing every time. The Roberts court couldn't do a better job of convincing the public that they are just political hacks in robes if they tried.
The SCOTUS 6 have not even attempted to hide their fear & obvious bias towards the “Unitary Executive”, (giving trump, effectively complete immunity or their beholding & obligation to their financial benefactors, (Citizens United). They have become an illegitimate court, serving not the citizens, but the corporations & the powered money interests.
You write: “Without universal injunctions or nationwide class actions, we’d be left to individual lawsuits—or, at best, district-wide lawsuits—to conclusively resolve the validity of nationwide policies.”
But NO court could conclusively resolve ANY lawsuit nationally. Precedent itself is destroyed if the law only applies to individual jurisdictions: no other court need follow any other court’s decision until SCOTUS settles the law on every single law in the Federal system.
Until then, the Federal government can continue to do illegal things to everyone who hasn’t themselves WON IN COURT.
So every single person has to sue and win to preserve their freedom of speech or their guns?
Yes, and . . . the government could KEEP taking guns from EVERYONE who hasn’t THEMSELVES won in court. And ANY court could conclude that the government is right, even though every other court says it’s completely illegal and unconstitutional.
I'd be more worried it Trump issued an EO that any public criticism of the administration is treason. By reduction to absurdity, Trump would be well withing his rights to shutdown sites like this one until the issue was finally adjudicated on merits years later by the Supreme Court. And every poster would have to defend themselves individually unless and until they can form a recognized class.
The court has truly opened up Pandora's Box. We will be lucky to have the matter of who really is a citizen of the USA as established by the 14th Amendment in time for the 2030 Census. This majority acts continually as though the Civil War was never fought and that the 13th, 14th and 15th Amendments were never really legitimate Amendments. They seem to really like the style and elegance with which Dred Scott was crafted.
The majority was dealing here with judicial overreach. You like like judicial decisional law over legislative? Dred Scott is perfect example of all that is wrong with it.
Start beating up on Congress for its its disgraceful inactivity. That's where the real problem lies. All the legislators who see their function as commenting on the executive are the real enemy.
From where does the SC derive authority to micro manage all article al III judges?
Art III sec 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The overall literacy of the post obscures the practical fact that district Court judges are as idiosyncratic and whimsical as presidents, and not elected to boot. The practical evidence of this is the blatant forum shopping that has gone on in these litigations. The notion that these rulings are based on some pure rule of law is farcical. They reflect value judgments of individuals.
The Court did its best with this issue today, but the real problem remains the complete ineffectiveness of Congress to legislate in the way the Constitution intends. While we have law being made by presidential executive orders then tested in court, I.e by the executive branch as modified by the judicial, we are going to have these strange, difficult uncertainties in the law. The law a unified statutory approach is required, but it is impossible for Congress to undertake in its present state of disastrous partisanship.
Come on Frank - you know better than that. A trial court's stay pending appeal is not immutable - a motion can be made to the appellate court, seeking either to confirm or vacate the trial court's stay. I think you are also well aware that federal district judges very rarely grant stays pending appeal.
I am not understanding this at all. The point is the trial judge did not reach a decision on the merits, but granted pulmonary relief. So why you were discussing stays, that weren't issued, is somewhat confusing to me. These trial courts did the exact opposite.
OK, my use of the terminology was a little off. But my point is valid. Grant of a preliminary injunction by a federal district court is immediately appealable. 28 USC 1292(a)(1). The government is not at all without recourse in these nationwide PI cases. This government just doesn't like playing by the rules.
It's just crummy civics. There's a reason why injunctions of these kinds are unknown until 1960, and the Advent of judicial activism. For what it's worth, I've become a prototypical liberal hawk, retreating to the politics of my youth (JFK and FDR). But I'm a card-carrying judicial conservative. Judges should not interfere with democratic processes unless absolutely necessary.
I voted against Trump three times, and I'm no fan. But the Democrats rushing off to court to get injunctions from friendly judges is a solution even worse than the Trump problem. Just who is the enemy of democracy anyway?
The problem here is the Trump's EO stopped the world as we knew it. Up until that point, if you were born in this country you were a citizen. Now, apparently, you aren't at least not if your parents are undocumented. Why not keep the status quo until it is decided on merits?
What is ironic is the Court agreeing to limit consideration to the nationwide injunction when the merits involved enforcement of the 14th Amendment Citizenship Clause, but as Justice Sotomayor said the U.S created this game and the Court went along. So we end up with a severe limitation on nationwide injunctions to enforce the citizenship clause, and in order to get there the Court relies on history of suits in equity before the English chancery court. But Britain does not have a written constitution and Chancery Court is not permitted to enjoin the King. So the citations to Chancery Court decisions are inapposite and irrelevant to the question of enforcement of our written Constitution.
So last Term the Court gave the president immunity for official acts and today the prevent effective remedies to benefit all citizens to enjoy the benefits and rights derived from our written Constitution.
I cannot imagine a majority of the Court not rendering the class action as useless as nationwide injunctions now are, to challenge executive orders.
But a more immediate question is why didn’t the Court take on the constitutionality of what clearly seems to be an illegal EO on birthright citizenship. The chaos that will result from lower court rulings holding the order to be unconstitutional in some states but unchallenged in other states seems an extremely good reason to have taken the issue up now.
The EO will be declared unconstitutional in every district court, and the regime knows it. So the regime, probably with the covert agreement of Roberts, carefully avoided raising on appeal any issue of the merits. Thus, the supreme injustices could rule procedurally, stay the injunctions , and buy the regime time, maybe years, to act lawlessly.
The issue isn't ripe. These injunctions weren't even final remedies. They were preliminary.
Believe it or not, the issue reached the Supreme Court without being litigated. That in itself should be evidence of how wildly aggressive these injunctions were.
This was not a cert procure where the Court states the issue it will address when cert is granted. The Court does not declare in advance what issue it will decide on these emergency applications. So while technically only the TI was before the Court, it could have put an end to this debate over birthright citizenship.
Without a record? Without findings of fact and legal conclusions? That violates some of the fundamental principles of jurisprudence. The Court never gives anticipatory or advisory opinions. The cert grants are only of final judgments or certain very unusual interlocutory appeals.
Findings of facts and conclusions of law are required for a PI, including a conclusion of the likelihood of success. The Court could have, and has in the past, reached the merits by addressing likelihood of success.
Almost always on the basis of an ex parte showing on affidavits and the like, nowhere near the fullness which a trial docket on its way to the Supreme Court should have. Responsible district Court judges would not have issued these injunctions in the first place.
I’m sorry but only TROs are entered ex parte. I have been in PI hearings that were just like trials. pIs are not entered ex parte but upon a contested evidentiary hearing.
Maybe congress should update the 200+ year old judiciary act. Seems like there are some flaws worth fixing. Particularly if we the American people are not able to be uniformly protected by the constitution
No legal training here at all but I do wonder why the court couldn't just say in this particular instance the executive order is blatantly illegal, it is unconstitutional, and therefore only a universal injunction can deal with the problem created. Would that have been a ruling on the merits? And they weren't asked to do that? What am I not understanding? Would we have been better off if the Supreme Court had refused the government’s request to rule on national injunctions?
thank you so much for your clear explanations. What a horrific situation! So does this mean that if Trump makes an executive order saying slavery is legal again that it is fine for people to go and enslave others and buy them and sell them until the SC says otherwise?
So many questions (from a lay person not schooled in the law):
What about previous cases where universal injunctions were applied and upheld? Are they now reversed? And how does this ruling apply to the concept of “states rights”? Will this lead to cases, like the example used here, where birthright citizenship is applied in one state but not another? Isn’t citizenship, by its very nature, a national status? Are we heading, in a sense, to a soft civil war and dissolution of the “union”?
Legal realism was a very popular theory when I was younger, but this Court does it with a vengeance. (It's the idea that decisions are influenced by personal beliefs and biases rather than simply by applying pre-existing rules.) And the majority barely even tries to apply a patina of consistency or actual application of the law; it all looks results oriented.
I call it "Through the Looking Glass textualism". The words mean exactly what they want them to mean, nothing more and nothing less. And they don't have to mean the same thing every time. The Roberts court couldn't do a better job of convincing the public that they are just political hacks in robes if they tried.
The SCOTUS 6 have not even attempted to hide their fear & obvious bias towards the “Unitary Executive”, (giving trump, effectively complete immunity or their beholding & obligation to their financial benefactors, (Citizens United). They have become an illegitimate court, serving not the citizens, but the corporations & the powered money interests.
You write: “Without universal injunctions or nationwide class actions, we’d be left to individual lawsuits—or, at best, district-wide lawsuits—to conclusively resolve the validity of nationwide policies.”
But NO court could conclusively resolve ANY lawsuit nationally. Precedent itself is destroyed if the law only applies to individual jurisdictions: no other court need follow any other court’s decision until SCOTUS settles the law on every single law in the Federal system.
Yikes.
Until then, the Federal government can continue to do illegal things to everyone who hasn’t themselves WON IN COURT.
So every single person has to sue and win to preserve their freedom of speech or their guns?
Yes, and . . . the government could KEEP taking guns from EVERYONE who hasn’t THEMSELVES won in court. And ANY court could conclude that the government is right, even though every other court says it’s completely illegal and unconstitutional.
I'd be more worried it Trump issued an EO that any public criticism of the administration is treason. By reduction to absurdity, Trump would be well withing his rights to shutdown sites like this one until the issue was finally adjudicated on merits years later by the Supreme Court. And every poster would have to defend themselves individually unless and until they can form a recognized class.
The court has truly opened up Pandora's Box. We will be lucky to have the matter of who really is a citizen of the USA as established by the 14th Amendment in time for the 2030 Census. This majority acts continually as though the Civil War was never fought and that the 13th, 14th and 15th Amendments were never really legitimate Amendments. They seem to really like the style and elegance with which Dred Scott was crafted.
The majority was dealing here with judicial overreach. You like like judicial decisional law over legislative? Dred Scott is perfect example of all that is wrong with it.
Start beating up on Congress for its its disgraceful inactivity. That's where the real problem lies. All the legislators who see their function as commenting on the executive are the real enemy.
TLDR, we are f*cked
From where does the SC derive authority to micro manage all article al III judges?
Art III sec 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The overall literacy of the post obscures the practical fact that district Court judges are as idiosyncratic and whimsical as presidents, and not elected to boot. The practical evidence of this is the blatant forum shopping that has gone on in these litigations. The notion that these rulings are based on some pure rule of law is farcical. They reflect value judgments of individuals.
The Court did its best with this issue today, but the real problem remains the complete ineffectiveness of Congress to legislate in the way the Constitution intends. While we have law being made by presidential executive orders then tested in court, I.e by the executive branch as modified by the judicial, we are going to have these strange, difficult uncertainties in the law. The law a unified statutory approach is required, but it is impossible for Congress to undertake in its present state of disastrous partisanship.
That's why we have appellate courts.
Indeed, and also why we don't let individual trial judges stop the world while the appellate process goes on.
Come on Frank - you know better than that. A trial court's stay pending appeal is not immutable - a motion can be made to the appellate court, seeking either to confirm or vacate the trial court's stay. I think you are also well aware that federal district judges very rarely grant stays pending appeal.
I am not understanding this at all. The point is the trial judge did not reach a decision on the merits, but granted pulmonary relief. So why you were discussing stays, that weren't issued, is somewhat confusing to me. These trial courts did the exact opposite.
OK, my use of the terminology was a little off. But my point is valid. Grant of a preliminary injunction by a federal district court is immediately appealable. 28 USC 1292(a)(1). The government is not at all without recourse in these nationwide PI cases. This government just doesn't like playing by the rules.
It's just crummy civics. There's a reason why injunctions of these kinds are unknown until 1960, and the Advent of judicial activism. For what it's worth, I've become a prototypical liberal hawk, retreating to the politics of my youth (JFK and FDR). But I'm a card-carrying judicial conservative. Judges should not interfere with democratic processes unless absolutely necessary.
I voted against Trump three times, and I'm no fan. But the Democrats rushing off to court to get injunctions from friendly judges is a solution even worse than the Trump problem. Just who is the enemy of democracy anyway?
The problem here is the Trump's EO stopped the world as we knew it. Up until that point, if you were born in this country you were a citizen. Now, apparently, you aren't at least not if your parents are undocumented. Why not keep the status quo until it is decided on merits?
You're focused on the one issue. To allow on principle a single trial judge to stop a nationwide government policy just won't do.
What is ironic is the Court agreeing to limit consideration to the nationwide injunction when the merits involved enforcement of the 14th Amendment Citizenship Clause, but as Justice Sotomayor said the U.S created this game and the Court went along. So we end up with a severe limitation on nationwide injunctions to enforce the citizenship clause, and in order to get there the Court relies on history of suits in equity before the English chancery court. But Britain does not have a written constitution and Chancery Court is not permitted to enjoin the King. So the citations to Chancery Court decisions are inapposite and irrelevant to the question of enforcement of our written Constitution.
So last Term the Court gave the president immunity for official acts and today the prevent effective remedies to benefit all citizens to enjoy the benefits and rights derived from our written Constitution.
I cannot imagine a majority of the Court not rendering the class action as useless as nationwide injunctions now are, to challenge executive orders.
But a more immediate question is why didn’t the Court take on the constitutionality of what clearly seems to be an illegal EO on birthright citizenship. The chaos that will result from lower court rulings holding the order to be unconstitutional in some states but unchallenged in other states seems an extremely good reason to have taken the issue up now.
The EO will be declared unconstitutional in every district court, and the regime knows it. So the regime, probably with the covert agreement of Roberts, carefully avoided raising on appeal any issue of the merits. Thus, the supreme injustices could rule procedurally, stay the injunctions , and buy the regime time, maybe years, to act lawlessly.
The issue isn't ripe. These injunctions weren't even final remedies. They were preliminary.
Believe it or not, the issue reached the Supreme Court without being litigated. That in itself should be evidence of how wildly aggressive these injunctions were.
This was not a cert procure where the Court states the issue it will address when cert is granted. The Court does not declare in advance what issue it will decide on these emergency applications. So while technically only the TI was before the Court, it could have put an end to this debate over birthright citizenship.
Without a record? Without findings of fact and legal conclusions? That violates some of the fundamental principles of jurisprudence. The Court never gives anticipatory or advisory opinions. The cert grants are only of final judgments or certain very unusual interlocutory appeals.
Findings of facts and conclusions of law are required for a PI, including a conclusion of the likelihood of success. The Court could have, and has in the past, reached the merits by addressing likelihood of success.
Almost always on the basis of an ex parte showing on affidavits and the like, nowhere near the fullness which a trial docket on its way to the Supreme Court should have. Responsible district Court judges would not have issued these injunctions in the first place.
I’m sorry but only TROs are entered ex parte. I have been in PI hearings that were just like trials. pIs are not entered ex parte but upon a contested evidentiary hearing.
Maybe congress should update the 200+ year old judiciary act. Seems like there are some flaws worth fixing. Particularly if we the American people are not able to be uniformly protected by the constitution
No legal training here at all but I do wonder why the court couldn't just say in this particular instance the executive order is blatantly illegal, it is unconstitutional, and therefore only a universal injunction can deal with the problem created. Would that have been a ruling on the merits? And they weren't asked to do that? What am I not understanding? Would we have been better off if the Supreme Court had refused the government’s request to rule on national injunctions?
Enjoyed "turtles all the way down". Bravo!
thank you so much for your clear explanations. What a horrific situation! So does this mean that if Trump makes an executive order saying slavery is legal again that it is fine for people to go and enslave others and buy them and sell them until the SC says otherwise?
I am also concerned about the reason for the punt.
Justice Frankfurter’s Rosenberg dissent is an eloquent, damning indictment of deciding cases without full briefing and argument.
So many questions (from a lay person not schooled in the law):
What about previous cases where universal injunctions were applied and upheld? Are they now reversed? And how does this ruling apply to the concept of “states rights”? Will this lead to cases, like the example used here, where birthright citizenship is applied in one state but not another? Isn’t citizenship, by its very nature, a national status? Are we heading, in a sense, to a soft civil war and dissolution of the “union”?
Just heard your words on @Katie Phang Thank You from Texas.