Supremes consider whether one district judge can derail a president

Will the Supreme Court stop radicals in robes from subverting the president and imperiling the separation of powers via rule by universal injunction?

Or will it continue allowing any one of 680 district court judges to nullify the votes of tens of millions of Americans by hamstringing the commander in chief with rulings infringing upon his powers to pursue policy and pick personnel?

These questions loomed over the Supreme Court on Thursday, as justices heard oral arguments in cases challenging the president’s executive order curtailing birthright citizenship.

Those arguments suggest we could be looking at a 5-4 decision hinging on Chief Justice Trump’s presidency, and our republican order.

The Resistance has made universal injunctions its lawfare weapon of choice to combat Trump II.

Left-wing plaintiffs have shopped hundreds of lawsuits to like-minded judges to secure 40 such injunctions in under 4 months, shutting down a slew of administration policies nationwide.

That’s nearly triple the number of injunctions the Biden administration faced in its first three years.

This comes on the heels of the Trump I administration, during which the president became the most enjoined man in U.S. history.

During his first term, courts hit Trump with more than half of all universal injunctions — 64 of them — entered between 1963 and 2023.

In notable instances, the Supreme Court ultimately overturned these rulings.

But the public did not get the policies they voted for enacted while those cases were litigated.

All of this is a departure from legal and historical traditions.

As some scholars note, judges strictly adhered to ruling on cases and controversies for the parties before it up until the 1960s — and the practice of issuing universal injunctions only exploded in the last few decades.

As the Trump administration has been stymied by a deluge of universal injunctions from often hostile judges, and the Supreme Court has dithered — refusing to put rogue district court judges in their place by smacking them down, or to curtail such injunctions — Congress has felt compelled to snap into action.

It has not only held congressional hearings, but developed legislation that would curtail the power of district court judges to issue universal injunctions.

All of this only heightens the imperative for the Supreme Court to act and restore the judiciary to its rightful role.

The case the Trump administration argued on Thursday, Trump v. CASA, provides a vehicle for it to do so.

Trump v. CASA consolidates three cases under which courts have entered universal injunctions prohibiting the president from implementing the birthright citizenship executive order, and calls for the Court not only to limit the lower courts’ injunctions to cover solely the parties bringing suit, but to eliminate universal injunctions in toto.

Therefore, the case is of transcendent importance. It is about the power of the judiciary in and of itself, and vis-à-vis the executive branch — that is, whether judges’ power extends to non-parties to a case in jurisdictions that are not their own, and whether that power can be wielded to systematically disempower a president.

How will the Court come down?

My read of oral arguments is that Justices Elena Kagan — who had previously spoken critically of universal injunctions — are all nays on curtailing the practice.

To varying degrees, Justices Samuel Alito had previously indicated their skepticism of the legitimacy of universal injunctions.

Nothing during oral arguments indicates they have been persuaded otherwise.

Justices Amy Coney Barrett had at least indicated their openness to considering the question of their legitimacy.

During oral arguments, Kavanaugh’s focus on the legitimacy of pursuing class action lawsuits to achieve de facto universal injunctions — without their defects — leaves me bullish on his position.

Justice Barrett did not tip her hand, though she seemed somewhat hostile towards the administration in questioning its willingness to abide by adverse lower court opinions.

This brings us to Chief Justice John Roberts as the potential tiebreaking vote, or perhaps someone who could even sway a sixth like Justice Barrett into the majority.

While largely silent during oral arguments, he did jump in to defend the ability of the Court to act expeditiously to deal with cases — neutralizing Justice Kagan’s lamentations that without universal injunctions, illegal orders will persist for years as the lower courts grapple with them.

Given the Chief Justice’s long-held desire to defend the judiciary as an institution, and the mockery lower courts have made of it during this term, perhaps here he will put his foot down and rein in the power of Resistance judges.

A weak or equivocal decision would only incentivize the lower courts to continue down their path of pursuing judicial supremacy.

The Court must put an end to judges playing Resistance philosopher-kings — and restore power to our elected leaders.

Benjamin Weingarten is a contributor at RealClearInvestigations.