The Supreme Court’s injunctions decision returns America to the constitutional horrors of Dred Scott 

In ordinary times, someone could read the Supreme Court’s decision on the legality of so-called “universal injunctions” as just the latest example of an old dispute: the proper way to interpret the Constitution and the jurisdiction of federal courts. Justice Amy Coney Barrett’s majority opinion saying the federal district courts do not have the authority to issue such injunctions is a classic in the genre of “originalism.” 

In contrast, the dissenting opinions by Justices Sonia Sotomayor and Ketanji Brown Jackson read the law through the lens not just of its origins but with an eye to how an interpretation would affect the world beyond the courtroom. They understand that these are not ordinary times and do not want to disable the judiciary from responding when fundamental rights are at stake, in the face of an ongoing assault on the rule of law itself. 

To put it simply, with its decision in Trump v. Casa, the court has become an accomplice in President Trump’s ongoing assault on our constitutional republic. The decision has effectively removed the federal courts as a check on the Trump administration.  

But it also does grave damage to the court itself — Trump v. Casa now takes its place among the high court’s most infamous rulings. As Stephen Lubet says, it returns us to the world of its discredited Dred Scott decision, which found that the rights of Black people depended on where they lived. Just like Blacks in the antebellum world who had one status in free states and another in slave states, immigrants and others may now find themselves in a legal nether land. 

To thoroughly appreciate the impact of Trump v. Casa, it is important to remember that “universal injunctions” allow courts to grant immediate relief that benefits not only the party who requests them but also anyone harmed by an action of the government. Individuals or organizations can go to court seeking such orders while they pursue further legal action.  

Even before last week’s ruling, they had to get over a high bar to persuade the courts to step in, including showing that in the absence of such an order, they would suffer “irreparable harm.” One commentator rightly notes that, “In many situations, there is no other way to stop widespread illegality, especially that perpetrated by the federal government. Nationwide wrongs require a nationwide remedy.”  

None of that seemed to matter to Barrett and her conservative colleagues, though. They insisted that because nationwide injunctions were not issued by English courts, federal district and appellate courts should not be able to use them today. 

They are living in the past rather than dealing with the realities of the present. As Barrett put it, “because the universal injunction lacks a historical pedigree, it falls outside the bounds of a federal court’s equitable authority.” 

But there is nothing new about the practice of granting such relief. More than a century ago, in a case involving an alleged infringement of freedom of the press by a postal regulation, the Supreme Court issued a nationwide injunction to stop such infringement until it could hear and decide the merits of the case. They have been used frequently in federal court rulings against presidents for many years. 

And there is nothing new about the current conservative justices’ criticisms of them. Eight years ago, in another case involving Trump, Justice Clarence Thomas wrote, “I am skeptical that district courts have the authority to enter universal injunctions. … If their popularity continues, this Court must address their legality.” 

Thomas got his wish.  

While you would never know from reading the majority opinion that Trump has been claiming authority to ignore the law whenever it suits him, including the right to curtail the constitutionally protected right to birthright citizenship, in their dissents Sotomayor and Jackson went to great lengths to ensure that his actions would not be ignored. 

As Sotomayor argues, the majority now holds that “No matter how illegal a law or policy, courts can never simply tell the executive to stop enforcing it against anyone.” Sotomayor condemns her colleagues’ attachment to a “rigid historical test” that allows “a grave and unsupported diminution of the judicial power of equity,” and chastises the majority for its “complicity” in the president’s “‘mockery’ of our constitution.” 

Her opinion conjured the jurisprudence of the Dred Scott era when it warned that the court’s new decision creates a “two-tiered scheme” in which someone’s citizenship status depends on whether they live in a state where an injunction has been issued or a state where no court ruling has been made. Jackson echoed Sotomayor in her worry that the court is acquiescing in the administration’s desire “to operate in two different zones moving forward: one in which it is required to follow the law (because a particular plaintiff has secured a personal injunction prohibiting its unlawful conduct) and another in which you can choose to violate the law with respect to certain people (those who have yet to sue).” 

The creation of law-free zones reminds Jackson of “history’s horrors,” and she notes what the majority has authorized will disproportionately impact the poor, uneducated, and the unpopular.” 

We can only hope that someday soon the Supreme Court will come to its senses and repudiate Trump v. Casa. In the meantime, it is left to the American people to resist the administration’s effort to hollow out the Constitution and preserve what it promised, a century and a half ago, to anyone born in this country. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Steve Kramer is a lawyer and former assistant attorney general in Massachusetts.