Legal Docket: The limits of judicial power

MARY REICHARD, HOST: It’s The World and Everything in It for this 19th day of May, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The Supreme Court typically saves its most controversial decisions for the end of the term, late June, early July. And this year, it reserved its most controversial oral argument for last.

REICHARD: Right, the argument is the last one for this year and it came last Thursday. Three cases combined into one. All centered on a single question: Can the president end birthright citizenship? Meaning, automatic U.S. citizenship for children born in the country to illegal immigrants or to those holding temporary visas.

EICHER: President Trump says he can. His executive order suggests that he can … and so he did. But before the policy could take effect … three federal judges said he couldn’t.

Single federal district judges in Maryland, Massachusetts, and Washington state. Each one declared the order unconstitutional. Each one froze the policy not just for the parties that came into their courtrooms … but for the entire country.

President Trump’s legal team says, federal trial judges can’t do that. U.S. Solicitor General John Sauer at the Supreme Court:

JOHN SAUER: Such injunctions... prevent the percolation of novel and difficult legal questions. They encourage rampant forum shopping. They require judges to make rushed, high-stakes, low-information decisions.

In other words, let the lower courts duke it out, let novel ideas “percolate,” don’t short-circuit the process.

Sauer also pointed to Article III of the Constitution. In relevant part, that says judges are to resolve disputes for the parties actually before them—in legal language their job is to adjudicate “cases and controversies.” They’re not national policymakers.

Justice Clarence Thomas asked a practical historical question:

JUSTICE THOMAS: General, when were the first universal injunctions used?

SAUER: We believe that the best reading of that is what you said in Trump against Hawaii, which is that Werts in 1963 was really the first universal injunction. ….

THOMAS: We survived until the 1960s without universal injunctions.

SAUER: That’s exactly correct.

REICHARD: Then came a tense moment. Justice Sonia Sotomayor repeatedly cut Sauer off. Chief Justice John Roberts then cut her off. Listen:

SAUER: We are not claiming that because we’re conceding that there could be an appropriate case—

SOTOMAYOR: Only a class—

ROBERTS: Can I hear the rest of his answer?

The court’s liberal wing homed in on access to justice. How can an illegal alien or child of one get relief without the nationwide injunction?

Justice Sotomayor was skeptical that class actions or individual cases would be fast enough. So she posed a hypothetical about guns:

SOTOMAYOR: So, when a new president orders that because there’s so much gun violence going on in the country, and he comes in and he says I have the right to take away the guns from everyone and he sends out the military to seize everyone’s guns—then we and the courts have to sit back and wait until every plaintiff whose gun is taken comes into court?

Sauer responded that courts can and do certify emergency class actions. He said immigrant advocacy groups can seek class status quickly—adding that courts could limit the injunction just to those affected, rather than applying it to everyone, including even people who are not part of the case.

EICHER: Justice Elena Kagan didn’t like that idea, either. She wondered: How in practical terms do you enforce a consistent rule of citizenship without some form of nationwide relief?

JUSTICE KAGAN: Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship that is the rule that we’ve historically applied rather than the rule that the EO would have us do?

REICHARD: Justice Ketanji Brown Jackson pushed harder. To her, the government’s position undermines the rule of law:

JUSTICE JACKSON: Your argument seems to turn our justice system into a catch-me-if-you-can kind of regime…. where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people’s rights.

I would think we’d want the system to move as quickly as possible to reach the merits of the issue and maybe have this court decide whether or not the government is entitled to do this under the law. Wouldn’t having universal injunctions actually facilitate that?

But others on the bench saw danger in the opposite direction. Justice Samuel Alito said too much power in the hands of a single judge is risky:

JUSTICE ALITO: The practical problem is that there are 680 federal district judges. And they are dedicated and they are scholarly and I’m not impuning their motives in any way. But you know, sometimes they’re wrong. And all Article III judges are vulnerable to an occupational disease. Which is the disease of thinking that I am right and I can do whatever I want.

EICHER: He added that appellate courts are naturally restrained—judges there answer to one another. But a single trial judge? As Justice Alito put it: “A monarch in that courtroom.”

REICHARD: All of this debate leads back to a deeper constitutional question—one that didn’t get as much time in oral argument: What does the 14th Amendment actually mean?

Here’s what it says in 18 simple words: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens.”

The language of the 14th amendment was ratified in 1868 … just after the Civil War. The 13th Amendment was the abolition of slavery. The 15th banned voting discrimination based on race. These are known as the Reconstruction Amendments. The goal was to make clear that former slaves and their children were citizens—reversing the Supreme Court’s infamous Dred Scott decision, which said they weren’t.

EICHER: The debate is over five words in the 14th Amendment: “subject to the jurisdiction thereof.”

That's why this case matters. The Trump administration says children born to illegal aliens are not “subject to the jurisdiction” of the United States—and therefore not automatic citizens.

The other side says that interpretation ignores 150 years of precedent and plain meaning.

JUSTICE SOTOMAYOR: The argument here is that the president is violating not just one but by my count four established Supreme Court precedents.

REICHARD: One of those rulings said that even if your parents are in the country illegally, if you were born here—you’re a citizen.

Sauer disagreed. He said the 14th Amendment’s citizenship clause was not written with illegal immigration in mind:

SAUER: Our primary contention is that the Citizenship Clause related to the children of former slaves, not to illegal aliens.

EICHER: Two lawyers took on the administration. Arguing for the 20 Democrat-led states against Trump’s executive order was New Jersey Solicitor General Jeremy Feigenbaum. Arguing for immigrant-rights groups and five women pregnant with babies who have a lot riding on the outcome of the case … was Kelsi Corkran:

KELSI CORKRAN: The executive order's stripping of citizenship from U.S.-born children is contrary not only to the Fourteenth Amendment's plain text but also our common law history, this Court's precedent, a federal statute, and over a century of executive branch practice.

EICHER: But her argument assumes the citizenship question is settled. Sauer’s side kept pointing to historical context.

Feigenbaum, meanwhile, focused on the practical problems of a non-universal rule:

JEREMY FEIGENBAUM: Puts chaos on the ground where people’s citizenship turns on and off when you cross state lines. If ICE has initiated a removal proceeding when you live in Philly, and you move to Camden, I suppose the ICE removal is supposed to turn off at that point potentially because your citizenship status has changed.

REICHARD: Then came the elephant in the room: forum shopping. That is to say, lawyers picking courts where they’re most likely to win sweeping injunctions.

The numbers back it up. During Biden’s term: 28 universal injunctions. During Trump’s first term: 64.

EICHER: And this year, so far …

SAUER: Since January 20, district courts have now issued 40 universal injunctions against the federal government, including 35 from the same five judicial districts. This is a bipartisan problem that has now spanned the last five presidential administrations.

REICHARD: Sauer called it bipartisan, but others will see it differently:

They are likely to see a coordinated legal resistance to President Trump’s agenda.

EICHER: The numbers do suggest a pattern: 92% of the judges who blocked President Trump’s executive orders were appointed by Democrat presidents. And on the other hand, every single judge who blocked a Biden order was appointed by a Republican.

REICHARD: That’s a problem. Researching this piece, I came across an article in Bloomberg Law written by a retired U.S. District Judge. Paul Grimm is now a professor at Duke Law School.

So … I called him up:

GRIMM: There are mechanisms that could be put into place to help mitigate the forum shopping. You can make it so that you have three judge panels. You see that in election cases. So you could pass a law by Congress, and the House has already got a bill that they're looking at here on that, that says that if this kind of a case involving a nationwide policy by, you know, a president, that in order to do that, you've got to pick randomly three judges from three different districts across the United States, so that all, you know, two out of three have to agree in the ruling. You could do that. Some people have said you should only let appellate courts decide, that they should have the restrictive ability. …And if you had to have a random panel, like a three judge panel that they already use in some kinds of cases, and you made the selection be from different circuits, then you would really help to tamp down that ability of one judge to step in and make that kind of a change.

REICHARD: That’s a longer-term fix. But for now, it’s the Supreme Court’s move.

And ironically, some of the liberal justices who now defend universal injunctions didn’t always. Back in 2022, Justice Kagan said this at Northwestern:

KAGAN: You look at something like that and you think that can't be right that one district court whether it’s in you know in the Trump years people used to go into the Northern District of California. And in the Biden years, they go to Texas. And 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.

I think most people agree that it can’t be right for one judge to do that. And I think the justices will sidestep answering whether children born to illegal aliens in the U.S. are citizens. I think they’ll hand down a narrow ruling that will limit universal injunctions in some way.

EICHER: And winding up today’s Legal Docket, the Supreme Court handed down two key opinions last week. Both of these deal with government use of force or authority and both draw important lines around what’s constitutionally allowed.

First is Barnes versus Felix. We dove deeply into this case back in February and we’ll link to that story in today’s transcript.

The case involved a fatal police shooting during a traffic stop. Barnes was the driver; Felix the policeman. Officer Felix shot and killed Barnes … after Barnes drove off with Felix standing on the doorsill of the car. Lower courts ruled in favor of the officer considering only the terrifying few seconds before he pulled the trigger. That’s known as the “moment of threat” doctrine.

REICHARD: But the Supreme Court unanimously said that’s too narrow. Writing for the court, Justice Kagan said judges need to look at the “totality of the circumstances.” Meaning, what led up to the moment of threat.

I mentioned the ruling was unanimous against the police officer’s position—and it was. But Justice Kavanaugh wrote a separate, concurring opinion—and Justices Thomas, Alito, and Barrett joined in. Kavanaugh wrote: “When a driver abruptly pulls away during a traffic stop, an officer has no particularly good or safe options.”

EICHER: Still, the ruling takes no position on whether the shooting was justified. It simply says courts cannot limit their review to a single snapshot.

The second case involves the Trump administration’s deportation policy … titled AARP versus Trump. That initialism might put you in mind of the well-known senior citizens’ group. But that AARP is not involved. Instead, it stands for an anonymized name of a person accused of membership in the foreign terrorist organization Tren de Aragua.

REICHARD: This ruling was 7-2 … and the court ruled against the administration.

Here, the Supreme Court blocked the removal of Venezuelan detainees under the Alien Enemies Act. The Court said such people have to receive notice and time to seek relief before deportation.

But the two dissenters Justices Alito and Thomas pushed back hard: warning that the court overstepped its bounds by intervening without jurisdiction … and by second-guessing urgent decisions by the executive branch.

EICHER: Both cases head back to lower courts to be considered with the new guidance the Supreme Court has given.

REICHARD: And that’s this week’s Legal Docket.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.