A Curb on the Politicization of the Courts

It’s time to bid a not-so-fond farewell to the so-called universal injunction. That’s legal parlance for the nationwide diktats handed down from the bench by federal district judges — often, it seems, with a political ax to grind — that have served to thwart President Trump’s ambitious policy agenda. The Supreme Court, by finding that federal judges have exceeded their power under law and the Constitution, is handing a substantial win to Mr. Trump.Well-earned, too, we don’t mind saying, on Mr. Trump’s part. Yet the extent of the victory, as a policy matter in this case, is not yet clear. The dispute that brought the use of injunctions to the court centers on birthright citizenship. Mr. Trump, by executive order, seeks to end the custom of automatic citizenship for children of illegals. The high court left the decision on the constitutionality of his démarche with the lower courts, where it could yet fail to prosper. During oral arguments in Trump v. CASA, the justices sounded skeptical as to the merit of Mr. Trump’s effort to change federal policy on citizenship. On the question of the powers of the court, though, Mr. Trump — yet again — won the constitutional point. That’s because the overuse of injunctions by judges had become highly political. The relief granted to Mr. Trump is likely to accelerate his ability to advance his agenda in months to come. That’s a point these columns underlined by marking the Babylon Bee’s scoop about Mortimer Dithers. He’s the satirical imaginary judge who, the Bee broadcast, had appointed himself president. The Trump administration’s agenda, the breathless Bee bruited, “was stopped in its tracks” by the judge appointing himself commander in chief. “There’s nothing we can do about it,” the Bee quotes “legal experts” as saying. “He’s a federal judge.” Good for the Bee. The gag, we suggested at the time, marks better than any jape we’d yet seen the hubris of federal district courts in a race to stymie a duly elected president. This is a major issue, and someday the high court will have judges who can write and think so devastatingly to the point as the Bee. Justice Amy Coney Barrett, writing for the majority, echoes these concerns by noting the startling rise in the use in recent years of the broad injunctions.“Universal injunctions were not a feature of federal court litigation until sometime in the 20th century,” she explains, with the first issued in 1963. Since then they have bedeviled presidents of both parties. “By the end of the Biden administration,” she adds, “almost every major presidential act” got “immediately frozen by a federal district court.” In the first 100 days of Mr. Trump’s second term, “district courts issued approximately 25 universal injunctions.”The majority looks askance at this judicial innovation, noting there was no such tool available to judges in the Framers’ era. Nor was this power granted in the Judiciary Act of 1789. Yet, Justice Barrett reckons, “had federal courts believed themselves to possess the tool, surely they would not have let it lay idle.” It’s a credit to the court’s commitment to originalism — and to judicial modesty — that the majority now looks to dial back this arrogation of judges’ power.The majority explains, too, that much of the efficacy of these nationwide injunctions can be replicated by the use of class actions in the court system. Justice Barrett notes that “universal injunctions” can be seen as “a class-action workaround.” Such actions give judges the power, in limited cases, to make rulings with wider applicability, but the procedural limits required to certify a class in a legal dispute provide a check on blatant judicial activism.Justice Ketanji Brown Jackson frets that the majority strips courts of power to “order everyone (including the Executive) to follow the law — full stop.” She ignores, as Justice Barrett sees it, that per the Constitution “what matters is how the Judiciary may constrain the Executive.” Justice Barrett urges her colleague to “heed her own admonition” that “everyone, from the President on down, is bound by law.” Quoth Justice Barrett: “That goes for judges too.”

A Curb on the Politicization of the Courts

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