A win for our constitutional system

Today, the Supreme Court issued its decision in a case challenging President Trump’s birthright citizenship executive order. But the Court’s decision is not really about birthright citizenship. This decision is about procedure. Specifically, it was about the injunctions that have been used to try to thwart the president’s agenda—not only in this case, and not only this president—but in dozens of cases on dozens of issues. And while the merits (or lack thereof) of birthright citizenship have been the more exciting conversation to non-lawyers, the injunction issue is a very big deal on its own—with implications for judicial power and government authority extending far beyond the Trump presidency. Today, many news outlets are reporting the Supreme Court decision as a win for the Trump administration. It is, of course, but the bigger story is the win for an appropriately modest view of the judicial power.

Injunctions are an old tool in the judicial toolkit. But in the last decades, extremely broad injunctions have taken on an outsized role in American government. Nationwide injunctions bring the courts into the policymaking process in a way and to a level that is new in the history of American law. 

An injunction is a remedy that a court can issue that tells the party to the case to do or not do something. Imagine I have a big factory next door to me that is dumping chemical waste onto my yard. If I sue the company, I probably want “damages,” that is, a money payment to compensate me for the harm the factory has caused me. But I will also want to stop the company from doing the same to me, and so I will want an injunction too—an order to stop polluting my property. Sensible enough. When people are challenging executive policies, the injunction is the priority. Especially when the policy has been announced but not yet enforced, the whole point of a challenge is to stop the policy from accomplishing whatever it was designed to do. 

Courts are designed for resolving disputes between parties. That’s why the Constitution limits the judicial power to “cases” and “controversies”—concrete disputes where parties bring their claims to the court, not abstract policy disputes. In this way, the courts are constrained in what they can do. While Congress can make big policy decisions and pass laws that will affect the future, the judiciary is limited to reacting to the cases and controversies brought into the courtroom.

What is new in American history is courts issuing injunctions that go far beyond the parties to the case. In my example before, it would be a court issuing an order that says that the factory can’t discard its waste into my yard or any other adjoining property—regardless of the individual circumstances. By issuing overbroad injunctions that go beyond the parties to the case, the court changes its role—from solving a dispute to declaring law for the whole country. This has become a big issue in regard to executive. It has long been the case that litigants can sue to protect themselves from a government action that they claim is unlawful. But in the last decade, courts—particularly federal district courts—have increasingly issued orders that prohibit the executive from pursuing these executive policies anywhere at any time, going far beyond the parties actually in the court. Litigators have learned that when they go to court challenging an executive action, they have a shot at getting the court to issue an order that doesn’t just protect them but has the national effect of shutting down the executive’s policy.

That’s what happened in the birthright citizenship cases. Several states and individuals brought suits in three different courts to stop the Trump administration from enforcing the president’s executive order. Three different courts then issued preliminary injunctions that told the executive not to enforce the order—not just when it came to the states and individuals in the district assigned to that court, but not to enforce it anywhere.  

These nationwide injunctions go far beyond the traditional power of courts in issuing injunctive remedies. Indeed, they transform the place of courts in the constitutional system, placing them at the center of national policymaking. It’s not a role that the courts are well suited to fill. This is not a role the constitution assigns the courts to fill.

Today’s Supreme Court decision recognizes these traditional—and wise—limits on judicial competence and authority. The opinion for the Court, written by Justice Amy Coney Barrett, provides an admirably clear explanation of why universal injunctions are not appropriate. It examines the history of injunctions and demonstrates that universal injunctions—providing remedies that extend beyond the parties to the case—are a recent invention. The Court also recognizes that the equitable power of federal courts extends to providing relief in disputes between parties. And it instructs federal courts to ensure that they are exercising their power accordingly.

In dissent, Justice Ketanji Brown Jackson puts in opposition a different view of the judicial role, in which the courts are essentially in a law-declaring role for the country. Justice Jackson sees universal injunctions as supporting the rule of law—surely, courts must be able to order whatever the law requires, she argues, including requiring universal compliance with the law. Justice Jackson argues that this is especially important to restrain the executive.

But Justice Barrett, writing for the majority, correctly recognizes that courts are not in the business of deciding matters for the whole country. They are not suited to such a task. Rather, they deal with the cases brought before them. This is their job. It does not serve the rule of law, Justice Barrett explains, when one “decries an imperial Executive while embracing an imperial Judiciary.” Justice Barrett writes that “Justice Jackson would do well to heed her own admonition: ‘[E]veryone, from the President on down, is bound by law.’ That goes for judges too.”

This underlines what was at stake in this decision. The judicial power is a carefully designed and important power. It is not unlimited. The Court’s decision directs the judiciary to do what it does best and leave the rest to the democratic political processes. That’s a win for our constitutional system.