Former Chief Justice John Marshall’s quote, “It is emphatically the province and duty of the judicial department to say what the law is,” is a cornerstone of the doctrine of judicial review, established in the landmark Supreme Court case Marbury v. Madison (1803).
This principle asserts that the judiciary (including the Supreme Court and lower federal courts, as well as state-level courts) has the power to review laws passed by the Legislature and actions taken by the executive branch, and to declare them unconstitutional if they conflict with the Constitution. This shaped the role of the judiciary in the American government, making it a co-equal branch with the power to check the other branches.
In recent years, there has been much discussion and litigation concerning the authority of federal courts to halt or prevent the enforcement of executive branch policies. Of specific concern are nationwide injunctions — judicial orders against the government that prevent it from implementing a challenged law, regulation, or other policy.
President Donald Trump by far has incurred the most nationwide injunctions in American history. Of the injunctions issued by federal district courts since 2001, 64 were issued against the first Trump Administration and 25 against the second — so far. There were 32 injunctions issued collectively against the Bush, Obama and Biden administrations.
Something to keep in mind is that this unprecedented flurry of judicial activity in Trump’s case (during both his first and second terms) is neither primarily due to the judges nor the courts; it’s because of the numerous policies they’re reviewing, many of them unconstitutional or unlawful.
Republicans and conservatives used to celebrate judges’ issuance of nationwide court injunctions that blocked Biden’s policies or progressive government programs. For example, federal appeals courts issued nationwide injunctions blocking his student debt relief program, COVID-19 vaccine mandates, and certain immigration policies.
However, now that nationwide court injunctions are being used to block Trump policies, onetime fans of the practice have decided that it’s unconstitutional and illegal and needs to be outlawed, and the Supreme Court was poised to help limit it.
On June 27, by a vote of 6-3, the Supreme Court ruled in the case of Trump v. CASA Inc. that federal courts likely lack the authority to issue universal or nationwide injunctions. The ruling has now relieved Trump of one of the key constraints he has faced in his more than six months in office, resulting in more power and less accountability for the president.
“But the power transfer that will result from this opinion is not only from the judiciary to the president but also within the judiciary.,” wrote Kate Shaw in The New York Times earlier this month. “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.”
Shaw added, “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.”
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.
What is clear in this ruling is the display of a remarkable lack of respect for lower courts which have done more than any other constitutional players to maintain core constitutional protections.
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.”
The Supreme Court seemingly took exception to the exorbitant number of injunctions filed against Trump so far during his second term but lent a blind eye to the context of the filings, many of which were unlawful, such as funding freezes, amending or repealing rules, dissolving federal agencies and firing civil servants, and ending birthright citizenship.
We live in a time of great pressure on our constitutional system, with a president who thinks he can make and suspend laws and punish enemies without a trial. An NPR investigation found that Trump has made more than 100 threats to investigate, prosecute, imprison or otherwise punish his perceived opponents.
The Court’s majority has empowered a lawless president to potentially violate the rights of American citizens, who then have no particular relief other than what they can get in a slow-moving judicial process such as in a class-action lawsuit. They have widened the president’s exercise of arbitrary power as if the executive were the sovereign lord of the nation and not a mere servant of the Constitution.
Whereas nationwide injunctions were a necessary tool to protect large groups of people — like migrants and women — from the harmful effects of some of Trump’s policies, this Court ruling has instead laid more groundwork for the exercise of unbridled executive power, and a pathway to an American-style imperious Supreme Court.
The Supreme Court recently lifted an injunction placed by San Francisco Senior District Judge Susan Illston which blocked the Trump administration from reducing the federal workforce in large numbers, a structural overhaul that usurps Congress’s policymaking prerogatives.