Kate Shaw writes:

Much like its opinion exactly a year ago in Trump v. United States, the Supreme Court’s opinion in Trump v. CASA significantly limiting federal courts’ ability to issue nationwide injunctions will result in more power and less accountability for the president. The Supreme Court has now relieved President Trump of one of the key constraints he has faced in his more than five months in office.

But the power transfer that will result from this opinion is not only from the judiciary to the president but also within the judiciary. That’s because the Supreme Court’s conservative majority also suggested that the Supreme Court, alone among the federal courts, can and will continue to provide uniform national answers to pressing legal questions, on both a preliminary basis and a final basis.

The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.

The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its language about the court’s conception of its role, which is neither neutral nor humble.

In Trump v. CASA, the Supreme Court could have definitively decided that Mr. Trump’s executive order purporting to end birthright citizenship is flagrantly unconstitutional and may not be enforced. Instead, the court announced that it alone can decide such matters on a nationwide basis — and that it would not do so here.

In his concurrence, Justice Brett Kavanaugh underscored this point by emphasizing, in case anyone doubted it, that “this court, not the district courts or courts of appeals, will often still be the ultimate decision maker” on the legal status of statutes and executive actions.

So as the Supreme Court departed for its summer holiday, it sent the birthright citizenship cases back to the district courts with a directive to “move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport” with the court’s ruling and “otherwise comply with principles of equity.”

Both the general tenor of the opinion and these instructions — to rapidly reconsider these cases in the context of an entirely new standard announced in an opinion that is far from clear — evinced a remarkable lack of respect for lower courts. And the decision comes at a time when district court judges have done more than any other constitutional players to maintain core constitutional protections. These are the same district judges who are facing unprecedented attacks online, threats to their safety and impeachment resolutions.

As Justice Ketanji Brown Jackson noted in her dissent: “Perhaps the degradation of our rule-of-law regime would happen anyway. But this court’s complicity in the creation of a culture of disdain for lower courts, their rulings and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.”

It is entirely possible, as some commentators have suggested, that lower courts in these cases will swiftly grant new injunctions, either to state plaintiffs or to newly certified class actions — and further, that courts may agree that awarding plaintiffs complete relief will necessarily involve barring the federal government from enforcing an illegal executive order as to anyone, either within a particular state or even nationally.

If that does happen quickly and if the Supreme Court does not again step in to block the decisions of lower courts, the effect will be essentially indistinguishable from the nationwide injunctions at issue in this case.

But that will take time; it is by no means certain that it will occur before the expiration of the 30-day period after which the executive order is now slated to take effect. And it will require enormous litigation resources. In addition, the litigation could result in conflicting court orders that could allow the executive order to go into effect at least in some places — and its going into effect anywhere would create both practical and legal chaos. [Continue reading…]