The Washington Post published this editorial on June 29. It was distributed by the Associated Press.
A case the Supreme Court decided on Friday stemmed from President Donald TrumpÃÛÁÄÖ±²¥™s attempt to eliminate birthright citizenship, but the rulingÃÛÁÄÖ±²¥™s implications go beyond even this big issue: The justices curbed the power of lower court judges to block illegal presidential actions, even as the sitting president tries to do things that are plainly unconstitutional. Now they need to own the consequences of their ruling. More than ever, they must be willing to act with speed and force when the president attempts to violate AmericansÃÛÁÄÖ±²¥™ rights.
The ruling inhibits federal district court judges from issuing nationwide injunctions, blocking the president from taking a certain action anywhere while the courts consider its legality. Practically speaking, the ruling means that ÃÛÁÄÖ±²¥” pending further judicial process ÃÛÁÄÖ±²¥” some Americans born to undocumented parents might see their country of citizenship deny them the legal recognition the Constitution guarantees them, and risk being deported.
The bigger picture, though, is that the justices have now reserved to themselves alone the ability to issue nationwide injunctions. This will make it easier for the president and his executive branch officials to violate even black-letter constitutional rights as the country waits for the high court to tell them to stop.
Writing for the majority, Justice Amy Coney Barrett noted that people could still get nationwide relief from district courts by filing class-action lawsuits, in which a class of people similarly harmed by a policy can seek a broad ruling against government overreach ÃÛÁÄÖ±²¥” a ruling that would apply to everyone who qualified for inclusion in the class. But class action litigation is hard. Certifying a class in court takes time and requires plaintiffs to overcome significant procedural hurdles. In fact, the Supreme Court in recent decades has made it more difficult to obtain certification.
Justice Samuel A. Alito in a concurring opinion even warned judges against seeing FridayÃÛÁÄÖ±²¥™s decision as an ÃÛÁÄÖ±²¥œinvitation to certify nationwide classes without scrupulous adherenceÃÛÁÄÖ±²¥ to the rules. ÃÛÁÄÖ±²¥œOtherwise,ÃÛÁÄÖ±²¥ he wrote, ÃÛÁÄÖ±²¥œthe universal injunction will return from the grave under the guise of ÃÛÁÄÖ±²¥˜nationwide class relief,ÃÛÁÄÖ±²¥™ and todayÃÛÁÄÖ±²¥™s decision will be of little more than minor academic interest.ÃÛÁÄÖ±²¥
The court based its decision on concerns that federal judges have overstepped their authority when issuing nationwide injunctions. That concern is reasonable. Courts should reserve nationwide injunctions for only extreme cases, yet, in the past few decades, the number of nationwide rulings from district courts has risen exponentially. Partisan attorneys general and legal activists have engaged in brazen ÃÛÁÄÖ±²¥œforum shopping,ÃÛÁÄÖ±²¥ in which they file suit in areas where they are most likely to succeed. In some instances, they have gamed the system so that individual judges friendly to their cause oversee their cases. That has made it increasingly difficult for presidents of both parties to pursue their legitimate agendas, Barrett noted.
Congress should have fixed this problem by making it harder for plaintiffs to judge-shop. Lawmakers could have required judges in a district to be randomly assigned to cases, for example. They also could have curbed federal district courtsÃÛÁÄÖ±²¥™ ability to issue nationwide injunctions except in extraordinary circumstances, such as when a government official deliberately ignores settled law. Likewise, following FridayÃÛÁÄÖ±²¥™s ruling, Congress could re-empower federal judges to issue nationwide injunctions within tight limits.
These sorts of reforms are still worth lawmakersÃÛÁÄÖ±²¥™ time, as they would offer district court judges a narrow opportunity to curb true miscarriages of justice while combating abuse of such authority. No doubt, congressional Republicans today would resist such legislation. But they should consider how they would feel if the next Democratic president were as eager to test legal lines as Trump is.
Meanwhile, the Supreme Court must raise its vigilance, halting severe abridgment of American liberties promptly and forcefully. The justices have now placed this responsibility upon themselves alone. They cannot act as though they have changed nothing.
