The rise of the imperial Supreme Court

No opinion in the Supreme Court's just completed term received more attention or is likely more important than Trump v. CASA, which held that federal courts cannot issue nationwide injunctions. Attention has properly focused on the Supreme Court making it much harder for courts to stop unconstitutional and illegal presidential actions. Going forward, the question will be whether alternative mechanisms -- such as nationwide class action suits and litigation by states on behalf of their citizens -- can adequately replace nationwide injunctions.

But for all of the discussion of Trump v. CASA, there has not been enough attention to the court's reasoning. It is easy to simply focus on six conservative justices, three of whom were appointed by President Donald Trump, lessening the ability of courts to check the President. But I also think that how the court came to this conclusion deserves attention, and, I believe, strong criticism.

Justice Amy Coney Barrett wrote for the court. At the outset, she made clear that the court was deciding the case on statutory grounds, as to the power of the federal courts under federal jurisdictional laws which were initially adopted in 1789, and not as a matter of constitutional law.

She said that, therefore, the question was whether English courts at the time of the ratification of Constitution had a similar power. She wrote: "We must therefore ask whether universal injunctions are sufficiently 'analogous' to the relief issued by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act." She then concluded: "The answer is no: Neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding."

There is so much that is wrong with this approach. Why assume that those who wrote the Judiciary Act of 1789 meant to copy the powers of the High Court of Chancery in defining the authority of the federal courts? Justice Ketanji Brown Jackson, in her dissent, powerfully explained: "The Founders of the United States of America squarely rejected a governing system in which the King ruled all, and all others, including the courts, were his subordinates. ... So, it makes little sense to look to the relationship between English courts and the King for guidance on the power of our Nation's Judiciary vis-à-vis its Executive."

The court's opinion assumes that the drafters of the Judiciary Act intended to prohibit federal courts from possessing powers not held by the High Court of Chancery. But the court offers no basis for that assumption. Quite the contrary, courts of equity then and throughout American history have had broad powers to fashion remedies. Justice Sonia Sotomayor wrote in her dissent: "By stripping all federal courts, including itself, of that power, the court kneecaps the Judiciary's authority to stop the Executive from enforcing even the most unconstitutional policies. That runs directly counter to the point of equity: empowering courts to do complete justice, including through flexible remedies that have historically benefited parties and nonparties alike."

Justice Barrett, in her majority opinion, and Justice Sotomayor, in her dissent, argue over whether the "bill of peace" that existed in England is sufficiently analogous to the modern-day nationwide injunction. But that should be beside the point. There is no reason why the authority of the federal courts should be determined based on what judges in England could do over 200 years ago. The fact that English courts may not have had a power does not mean that the drafters of the Judiciary Act of 1789 meant to reject it for American federal courts.

Justice Barrett's methodology, making the outcome turn entirely on history, allows her to dismiss concerns for the consequences of eliminating nationwide injunctions. She brushes aside the dissents' argument that ending nationwide injunctions will make it harder to check the President and stop unconstitutional actions. She concluded her majority opinion: "Some say that the universal injunction 'give[s] the Judiciary a powerful tool to check the Executive Branch.' But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too."

But the court should have considered the practical effects of its ending nationwide injunctions. The decisions will likely have enormous consequences. It will mean that to challenge the constitutionality of a presidential action or federal law, a separate lawsuit will need to be brought in all 94 federal districts. It means that the law often will be different depending on where a person lives. It could mean that there could be two people born in identical circumstances in different federal districts, and one would be a citizen, while the other would not. This makes no sense.

It will mean that the president can take an unconstitutional act and even after courts in some places strike it down, can continue it elsewhere until all the federal districts and all the federal courts of appeals have invalidated it or the Supreme Court rules. The court thus has made it much more difficult for the judiciary to stop unconstitutional and illegal actions by the president and Congress. As Justice Jackson wrote: "The Court's decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law." Justice Barrett's majority opinion dismisses this concern as irrelevant because all that matters in her view is whether historically English courts could issue something analogous to nationwide injunctions.

It is important to stress that this is not unique in the conservative justices' adopting a historical approach that gets to the conclusion they want, while pretending that they are doing something else and following a neutral methodology. That is what originalism is all about: a theory that purports to have an objective way of interpreting the Constitution. In reality, though, it was created and is used to justify conservative conclusions, with conservative justices abandoning it when it doesn't get the results they want.

It is unclear how much the court's decision in Trump v. CASA will matter. That will turn on whether the Supreme Court allows nationwide class actions and state governments to sue on behalf of their citizens. On July 10, a federal court in New Hampshire certified a nationwide class action and declared unconstitutional President Trump's executive order that greatly restricted birthright citizenship. This is sure to go to the Supreme Court, and what it decides will have enormous implications as to the ability of courts to check the President in light of the demise of nationwide injunctions in Trump v. CASA.