A fragmented court

On Thursday, the Supreme Court heard oral arguments in Trump v. Casa, a trio of consolidated cases concerning President Trump’s executive order on birthright citizenship. The question before the Court was a narrow one: whether district court judges have the power to put executive orders on ice nationwide or only to bind the parties before the court. The issuance of so-called nationwide injunctions—court orders that are authoritative coast to coast—have long been the subject of criticism by those on both the left and right. Yet despite the fact that a majority of justices have previously been critical of the practice, the Supreme Court appeared torn over whether to limit nationwide injunctions in this case.

The dispute arises out of President Trump’s executive order regarding birthright citizenship. That order provides that the children of parents in the United States illegally or temporarily are not automatically granted birthright citizenship. A federal district court in Seattle immediately found the order unconstitutional and barred the government from enforcing it anywhere. So too did a district judge in Maryland and another judge in Massachusetts.

The Trump administration then took the case to the Supreme Court. But instead of asking the Court to review the merits of the president’s executive order, the administration asked it to review the scope of relief ordered by the lower courts. They asked, in other words, that the Supreme Court hold that nationwide injunctions exceed the power of federal district courts. The Trump administration argued that federal judges have the authority to bind only the parties before them. In the instant case, that would mean the lower courts could stop the government from acting against the plaintiffs who had sued them but not everyone everywhere.

The United States opened its oral argument by noting that nationwide injunctions are “a bipartisan problem that has now spanned the last five presidential administrations.” The United States explained that such injunctions are of recent vintage and have no historical analog. They also create a host of practical problems. Such injunctions, for example, require rushed decision-making and encourage forum shopping—the filing of a case in front of a favorable district court. In fact, of the 40 universal injunctions already issued against the Trump administration, an astounding 35 have come from the same five judicial districts.

This dynamic can create the appearance of judges playing politics: A Harvard Law Review article notes that more than more than 92% of the nationwide injunctions against the Trump administration were issued by judges appointed by Democratic presidents. And they force the government to win in front of every district court while challengers only have to win once. All of this grants to the lower federal courts an awful lot of power vis-a-vis the executive branch.

Supreme Court Justices have expressed increasing skepticism over the use of such injunctions. Justice Thomas has been the most outspoken, writing way back in 2018 that “universal injunctions are legally and historically dubious.” Justice Gorsuch has urged the Court to review the practice, arguing universal injunctions sow chaos and are patently unworkable. Meanwhile at a 2022 speech at Northwestern, Justice Kagan said, “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.” Justice Alito, in an opinion joined by Justices Thomas, Gorsuch, and Kavanaugh, has hinted that universal injunctions at least sometimes exceed the federal courts’ traditional equitable authority. And Justice Barrett has joined an opinion urging the Supreme Court to review the authority of federal courts to issue nationwide injunctions.

Given all this, many expected this case to be the end of nationwide injunctions. Yet the long and at times heated argument saw the justices worrying about what relief in cases might look like without universal injunctions. The administration pointed to various procedural devices, like class actions, that could allow groups of plaintiffs to sue. Other justices wondered whether, since people travel state to state, full relief was possible for the states that had sued without nationwide relief. And while the legality of the birthright citizenship executive order was not directly at issue, several justices expressed practical and legal concerns over letting the order take effect.

It is always hazardous to read the Supreme Court oral argument tea leaves, but the oral argument in Trump v. Casa revealed an especially fragmented Court. While a majority of justices have expressed skepticism over nationwide injunctions, many of those same justices expressed concern about what sort of litigation might replace them and whether those procedures could provide timely and adequate relief. The Supreme Court could hold that universal injunctions are generally off limits except for in unusual circumstances, or the Court could even decide the merits rather than the universal injunction question. The good news is that we’ll almost certainly know by the end of the June when the Court concludes its term.