Double-Header at the High Court

The arguments at the Supreme Court today, tackling birthright citizenship and the scope of judicial power, drill down to the constitutional bedrock in a case that could bolster President Trump’s ability to advance his policy agenda. The dispute reaches the high court amid an unprecedented wave of delaying actions by federal district judges to halt, delay, or reverse Mr. Trump’s ambitious series of executive orders.The scale of the opposition to Mr. Trump’s démarches raises concerns about the politicization of the federal bench and a kind of concerted judicial resistance to the president’s program. No wonder, then, that Mr. Trump dispatched America’s solicitor general, John Sauer, to the high court to plead for expeditious relief from what appears to the White House to be unwarranted judicial and political obstruction by the lower courts.So today’s arguments presented a curious scenario in which the question of birthright citizenship, the ostensible prompt for the hearing, was put aside for the most part so as to weigh the power of judges to issue binding nationwide orders in cases before the jurists — universal injunctions, in legal parlance. General Sauer’s arguments on this head met with a mixed reaction from the Supreme Court bench, even among Mr. Trump’s nominees.“Let’s put out of our minds the merits of this, and just look at the abstract question of universal injunctions,” is how Justice Samuel Alito summed up today’s argument at the court. “The practical problem,” he reckoned, “is that there are 680 district court judges,” all of whom, he quipped, “are vulnerable to an occupational disease, which is the disease of thinking that ‘I am right and I can do whatever I want.’”The court’s three liberal justices made clear that they saw the broad injunctions as a critical tool to prevent executive overreach. Justice Sonia Sotomayor suggested the possibility that a future president might issue an executive order to confiscate all guns, never mind the Second Amendment, palladium of our liberty. Yet absent the ability of lower court judges to halt such a decree, General Sauer conceded it could take years for the litigation to reach the Supreme Court.General Sauer suggested that using procedural rules related to class actions in courts could prove an alternative vehicle to achieve the same ends as universal injunctions without the same risk of judicial overreach. Reaching status as a class action, though, requires overcoming procedural hurdles, he conceded. Justice Ketanji Brown Jackson suggested those barriers could turn the courts into a “‘catch me if you can’ kind of regime.”Yet Justice Clarence Thomas, who has made known his opposition to these injunctions, noted that America “survived” without them up until the 1960s, when judges first started to deploy them. That echoes a point made by Senator Grassley, who is pushing legislation to curb the practice that he avers has “become a favorite tool for those seeking to obstruct Mr. Trump’s agenda.” The Congress, it seems, has good reason to address this question in law.A potential via media emerged at the suggestion of lawyer Kelsi Corkran, arguing against Mr. Trump’s position. She offered a kind of compromise in which the high court could “allow universal injunctions only when a plaintiff is challenging a government action as violating fundamental constitutional rights,” the Times reported, since in those cases, “there are concerns that other people harmed by the same action” would “experience irreparable harm.”Ms. Corkran’s proposal underscores the prospect that Mr. Trump could in the long run face a split decision in this dispute before the Nine. His attempt to narrow the scope of birthright citizenship policies seems unlikely to win much support from the justices. Yet Mr. Trump could — just could — eke out a win, to at least some degree, in his campaign to overcome the sweeping lower court rulings that have so far hamstrung much of his political agenda.

Double-Header at the High Court

Double-Header at the High Court

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