The Supreme Court heard oral arguments on May 15 on what has become a debilitating, critical crisis: the issuance of nationwide injunctions en masse by federal district court judges.
Notably, the overwhelming majority of those judges are Democrat appointees who seek to prevent President Donald Trump from doing what he was elected to do: govern. According to a lawsuit tracker by the Associated Press, more than 200 lawsuits have been filed against Trump’s executive orders.
In three consolidated cases from Washington, Maryland, and Massachusetts, federal district court judges issued nationwide injunctions (sometimes called universal injunctions or, to quote Justice Neil Gorsuch, “cosmic injunctions”) against the implementation of a Trump executive order ending universal birthright citizenship. The plaintiffs in those cases claim the order violates the 14th Amendment.
Those injunctions reflect a broader pattern. In less than four months, roughly 40 nationwide injunctions have been entered against the Trump administration — almost double the number entered during all four years of the Biden administration. As Solicitor General John Sauer pointed out, 35 have come “from the same five judicial districts.”
One could reasonably argue that the judges entering these orders are essentially attempting to undo the results of the last election by keeping in place Biden administration policies — policies that more than 77 million voters roundly rejected last November. These judges apparently believe they have more authority than the president to make decisions on everything from domestic and foreign policy to matters affecting national security and the military.
The Supreme Court should vigorously enforce its prior precedents (including its 1984 decision in U.S. v. Mendoza), which strictly limit the ability of a single unelected district court judge (of whom there are nearly 700) to keep the administration from achieving its policy objectives by ruling not just for those who filed a lawsuit but also for everyone who didn’t.
The court must also end the blatant judge-shopping and what amounts to a collective wholesale interference in the president’s constitutional authority as head of the executive branch.
The May 15 session was itself unusual — hopefully a sign that Chief Justice John Roberts finally recognizes the judicial crisis these lower court judges are causing. Typically, oral arguments end in April, and emergency requests for stays are usually decided on the pleadings without oral argument.
We have to wonder whether the chief justice was prompted to act in part by Justice Samuel Alito’s rather stinging March 5 dissent in Department of State v. AIDS Vaccine Advocacy Coalition (a dissent joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh).
There, the majority refused to step in and stay a lower court injunction, and the dissent remonstrated:
Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
In the May 15 case, the arguments before the court weren’t about the substantive merits of the birthright citizenship dispute, although that came up peripherally. Rather, the arguments focused on the appropriateness of the nationwide injunctions issued by three different judges.
The government didn’t even ask for a complete stay of the injunctions. Rather, it simply asked that the Supreme Court limit the injunctions to the individuals who brought the lawsuits: the members of the challenging associations and the residents of the states that sued (if those states have standing).
In his opening statement, Sauer summarized all the arguments made against universal injunctions. Not only do they exceed the judicial power granted to courts in Article III of the Constitution, but they “create a host of practical problems.” They:
encourage rampant forum shopping. They require judges to make rushed, high-stakes, low-information decisions. They circumvent Rule 23 by offering all the benefits but none of the burdens of class [action] certification. They operate asymmetrically, forcing the government to win everywhere while the plaintiffs can win anywhere. They invert the ordinary hierarchy of appellate review. They create the ongoing risk of conflicting judgments. … They create what Justice [Lewis] Powell described as repeated and essentially head-on confrontations between the life-tenured and representative branches of government. And they disrupt the Constitution’s careful balancing of the separation of powers.
As expected, the most liberal members of the court, Justices Sonia Sotomayor and Ketanji Brown-Jackson, were extremely hostile in their questioning — to the point that the chief justice chided Sotomayor for repeatedly questioning Sauer but then interrupting before he could answer.
Justice Elena Kagan was less overtly hostile, but she seemed to be groping for a way to argue that the nationwide injunctions entered against the Biden administration were wrong but that those against Trump are somehow legally justified.
Justice Alito pointed out a universal truth about judges, saying they are “vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want.’”
That occupational disease has infected dozens of federal judges, who are acting as if they are super legislators with the power both to veto anything President Trump does and to promulgate broad prospective rules that apply to the entire nation (which most people call laws) rather than rendering a judgment in favor of the party that filed the lawsuit and only the party that filed that lawsuit.
In a speech at Georgetown Law recently, the chief justice claimed that the rule of law is “endangered” because of the “trashing” of these activist judges. If Roberts wants to remedy that, then the justices need to step up to the plate and act decisively to bring the judiciary back within the limits of its constitutional authority.
John Malcolm is Vice President for the Institute for Constitutional Government, Director of the Meese Center, and the Ed and Sherry Gilbertson Senior Legal Fellow at The Heritage Foundation. Hans von Spakovsky is a Senior Legal Fellow in Heritage’s Meese Center for Legal and Judicial Studies.
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