Trump to SCOTUS: Catch me if you can

During birthright citizenship arguments, Justice Jackson pinned down the problem if the Supreme Court abolishes nationwide injunctions.

Credit: Fred Schilling, Collection of the Supreme Court of the United States

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In a standout moment of yesterday’s oral arguments in the birthright citizenship case, Justice Ketanji Brown Jackson highlighted the danger of the Supreme Court choosing this historical moment to potentially remove nationwide injunctions from federal judge’s arsenals.

“Your argument seems to turn our justice system, in my view at least, into a ‘catch me if you can’ kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights,” Jackson said.

Jackson’s line carried particular resonance since she said it to solicitor general D. John Sauer, who helped Donald Trump escape his federal criminal prosecutions by leading the arguments that ultimately gave him sweeping immunity.

“Supposed to be bound by the law”

Now, the Supreme Court has the power to neutralize the most effective tool judges have to constrain Trump’s radical executive orders, which judges have blocked 155 times and counting.

Every one of those decisions required a finding that the orders were likely illegal or unconstitutional, as judges across the country — appointed by Republican and Democratic presidents, including Trump — have ruled dozens of times.

Trump v. CASA ostensibly focused on the executive order purporting to end birthright citizenship, a practice understood to be enshrined by the 14th Amendment since the Reconstruction era. That executive power grab would have been audacious enough, but Sauer’s request to the Supreme Court is both more modest and more sweeping.

Sauer seeks to impose strict limits on any federal judge’s ability to stop an illegal or unconstitutional executive action to the parties involved in the litigation.

Justice Jackson noted that this would allow the government to continue to violate the rights of non-parties, unless there is broad enough class action relief.

“I don't understand how that is remotely consistent with the rule of law,” Jackson said.

She also delivered a pointed rebuke to Sauer’s invocation of the traditions of the English Court of Chancery.

“The fact that courts back in English Chancery couldn't enjoin the king, I think, is not analogous or indicative of what courts can do in our system, where ‘the king,’ the executive, is supposed to be bound by the law, and the court has the power to say what the law is,” Jackson noted.

“Losing constantly”

Sauer appeared to understand that Justice Jackson drew blood, quickly seeking to soften the blow of her most quotable line.

“I think the ‘catch me if you can’ problem operates in the opposite direction where we have the government racing from jurisdiction to jurisdiction having to sort of clear the table in order to implement a new policy,” Sauer replied, echoing the Trump administration’s complaints about “forum shopping.”

But Justice Elena Kagan noted that it’s not only judges in New York or Washington, D.C. ruling against Trump.

“The government is losing constantly,” she said.

In light of that unbroken chain of defeats, Kagan said that Trump would have no incentive to take the birthright citizen case to the Supreme Court if federal judges’ rulings were limited to their individual districts.

“If I were in your shoes, there is no way I'd approach the Supreme Court with this case,” she exclaimed.

That’s why, Kagan said, Jackson’s “catch me if you can” comment was true: Trump could simply choose not to appeal limited rulings against him.

For University of Michigan law professor Leah Litman, the author of “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes,” the fact of that the justices are even considering eliminating universal injunctions encapsulates the conservative majority’s approach to Trump 2.0.

“It is really an example of this procedural approach that the Supreme Court has taken to much of the Trump administration lawlessness,” Litman said, pointing to the conservative majority’s Alien Enemies Act ruling forcing immigrants to bring habeas corpus cases.

To Litman, the Supreme Court appears to be “unwilling to sign off on the lawfulness of some of what the Trump administration is doing, and yet [is] still enabling their lawlessness by making it harder to challenge their actions.”

“What is the point?”

It wasn’t only the court’s liberals who questioned the need to shelve nationwide injunctions.

Early on during the proceedings, Justice Samuel Alito asked Sauer flatly: “what is the point of this argument about universal injunctions?”

Alito had meant that the Trump administration conceded that there were other mechanisms, like class action relief, that would allow executive actions to be blocked nationwide.

Justice Neil Gorsuch praised Kagan’s aggressive grilling of Sauer, saying, to laughter in the courtroom, that she “asked my questions better than I could have.”

Professor Litman believes nationwide injunctions are probably here to stay — but there’s a catch.

“I did not count five votes to say ‘no nationwide injunctions ever’ in the lower court, but I also didn't really count five votes to just straight-up deny all of the Trump administration’s application,” Litman said. “So, what I think is likely to happen is we're going to get some kind of mealy-mouthed ruling that doesn't rule out the possibility of nationwide injunction in this case, but requires there to be more procedural findings or another procedural mechanism before the lower court.”

If that happens, the public can urge Congress to act.

“So I think educating yourself and educating others is always very important,” she said, adding that calling senators, representatives and local leaders could help address those changes.