Bulwark Takes - SCOTUS Just Blew Up Nationwide Injunctions

Episode Date: June 27, 2025

Leah Litman, law professor and author of "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes" joins Sam Stein to discuss the Supreme Court’s ruling limiting nationwide injunctions and its implications for Trump’s executive order targeting birthright citizenship. Also, the potential consequences for civil rights enforcement, and how this decision could reshape the balance of power between the courts and the executive branch.  Read more in The Bulwark, "The Supreme Court Just Made America a Dangerous Place"

Hey guys, it's Sam Stein, Managing Editor at The Bullwork. I am joined by Leah Littman, who is a law professor at the University of Michigan. She's also the author of the book Lawless, how the Supreme Court runs on conservative grievance, fringe theories, and bad vibes. It's a lot of things to run on. It's a good book, though. We're here to talk about the breaking news of the Supreme Court's decision in the birthright citizenship case. I'll get out of the way in a second, just giving the background. Supreme Court came down six to three, not necessarily in the merits of birthright citizenship, but on the issue of nationwide injunctions ruling that lower courts cannot under some many circumstances issue nationwide injunctions as they had done, three courts had done with respect to birthright citizenship. Leah, did I get that right? Yes, I think that's a fair general summary. Okay, so let's start with the backstory and then we'll get to the decision. How do we get to this

place? President Trump signed an executive order that purported to basically nullify the first sentence of the 14th Amendment, which says that all persons born and naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States. And so he signed an executive order that denied birthright citizenship to the children of some migrants. And that was immediately challenged by some private plaintiffs, as well as some states. And the lower courts universally concluded this executive order is unlawful, and they issued what are called nationwide injunctions.

They block the policy. What is a nationwide injunction for the uninitiated? They block the policy from being implemented anywhere as to anyone, even plaintiffs that hadn't sued yet in court. And why do we have nationwide injunctions? And secondarily, but relatedly, because this is part of the decision. How long have we had nationwide injunctions? So why we have nationwide injunctions is sometimes blocking of whole policy is basically the

only way you can fully remedy the harm to the plaintiffs that have challenged it. Happy to talk more about why that might be the case as to birthright citizenship, but basically scholars on nationwide injunctions locate them originating in the early 1900s. So they weren't something that has always been with us but that's partially because at the beginning of the Republic our federal government just wasn't doing as many things as it does today. Okay let's talk a little bit about what you said prior to that. It's sometimes important to block the nationwide to prevent irreparable harm because Because usually, at least for me at least,

one of the reasons that I was always told you need nationwide injunctions that enact is blatantly flagrantly unconstitutional, then there's an obvious necessity to stop it from taking place nationwide. But what you're saying is something a little bit different than that. Yeah, so I think we could be saying something similar

depending on what kind of case we're talking about. But on the birthright citizenship executive order, some states have challenged the policy and they say, look, in order for us to administer a variety of social services, we need a universal, easy to apply, uniform rule of citizenship. And if this policy goes into effect some states

but not others, what are we supposed to do when individuals travel between states? And so this might be a case where you kind of need nationwide belief, right? So someone whose parents may not be US citizens is born in Connecticut Travels to Alabama and if you have a patchwork of laws around birthright citizenship that person would suddenly become a Non-citizen in Alabama. Can't have that. All right, so the court, the Supreme Court in this case, gets the case. And talk a little bit about what oral arguments were like and what they kind of pretended here. The oral arguments were really focused on two things. I think one is the history and tradition

of nationwide injunctions and when they originated and whether they were something new or different and suspect. And then second is the practical consequences of limiting nationwide injunctions or allowing them. I think the confluence of a variety of factors has created a ton of pressure on the Supreme Court to review emergency applications that arise from nationwide injunctions.

So the Supreme Court doesn't like that. On the other hand, there were real concerns about if you prohibit nationwide injunctions, what is that going to do to lower court's ability to enforce the law against an executive branch? So I guess I want to back up a tiny bit because the case was brought over a specific policy, which is the executive order ending birthright citizenship. Why did the arguments center on nationwide injunctions if the merits of the case were not about necessarily nationwide injunctions?

Was that a conscious decision by the Trump administration, the Department of Justice? Yes, exactly. The Trump administration did not ask the Supreme Court to review the merits of the case. That is whether the executive order is actually compliant with the Constitution and federal law. They just asked the court to review this procedural question of assuming a court finds it unlawful, what kind of remedy can they offer? So the court takes into consideration the issue of nationwide injunctions and then in its decision today, does it at all address the issue of birthright citizenship?

Justice Sotomayor did in her dissent. So she really begins her dissent by reaffirming the concept of birthright citizenship because she's concerned about what the majority's decision is going to do to it. Right. But the majority has not actually rendered a decision. In fact, they've only given 30 days for what, some sort of conclusion? So they've given 30 days for the federal government to come up with a set of procedures or process for how they plan to implement the executive order because lower courts had blocked the order before it ever went into effect. The federal government said, we never actually had the 30 day period to create a set of guidelines

for how we were going to implement this. And so that's what they are going to begin doing and Then if it's not blocked before then it could go into effect July 27. All right I want to get to the main course, which is what this means What not having nationwide injunctions or limited ability to have nationwide injunctions means but before we get to the main course I do need to sort of figure out what is going to happen with birthright citizenship here So 30 days to come up with some rules and guidelines. In the interim, is the expectation that these lawsuits that have been brought against the

administration over this executive order will then go up the chain of the courts? The expectation is the lower courts are going to have to make determinations that the United States Supreme Court suggested Would be necessary before they offered nationwide relief So maybe just we can quickly summarize when the majority said nationwide injunctions were to appropriate because I think that will suggest Okay, let's do that. Yeah. Okay. Okay. So the majority said you can't get nationwide injunctions when a case is brought by an Individual plaintiff just a private citizen. Sure. Right. Joe Schmo. Yeah.

Right. Joe Schmo. But you might be able to get nationwide injunctions under two circumstances. One is where a state challenges a policy and where in order to give that state full relief, a nationwide remedy is required. Haven't 22 or so states challenged this policy? They have, but what the Republican justices said is we are not going to decide for ourselves whether a nationwide injunction is necessary to remedy the state's harms here. We're going to leave that determination to the lower court in the first instance. So that's what the lower courts are going to be doing, at least in the cases brought by the states.

Didn't they do that though? I'm confused because we had a nationwide injunction based on cases brought by 22 states. Now the Supreme Court's saying I'm going to leave it to the lower court to decide. Maybe I'm not a lawyer for a reason. Well, no. So basically they just created a new legal standard and a new legal test because before this decision, the lower courts didn't have to decide that. Roger. Right. But in theory, in an hour, one of these courts can say, I have the case, I have the lawsuit from California saying that this is flagrantly unconstitutional. I hear now issue a nationwide injunction based on the new Supreme Court standard that the

objection has to be brought from a state. Maybe except three things um so it's possible you know that a lower court is going to do that but then the united state supreme court would review their determination and it's possible that the republican justices would disagree that in fact nationwide relief is warranted here second is you have some pause for a second so now in every instance the u.s supreme Court has to make the determination on every single case, whether nationwide relief is warranted, even if it's brought by state government. Yeah. So in order to award nationwide relief, a federal court is going to have to

determine that nationwide relief is necessary to provide the state with relief. And then the federal government could ask the United States to review that determination. And when you say federal court, you mean what? A trial court. Okay, trial court. Okay. Okay. Wow.

Okay. So there's more bureaucracy here. Yep. More law. Okay. All right. What are the other cases, I interrupt you, but what are the other instances in which you can still get nationwide injunctions?

The possibility of class actions. So class actions are where an individual plaintiff says, I'm bringing this case on behalf of myself and others similarly situated. And there's a different set of legal rules that plaintiffs have to satisfy before their case can proceed as a class action. Class actions can take somewhat different forms, right?

You can have limited class actions. You could have national class actions. Are there standards here that have to be hit for a nationwide injunction now? Unclear. At least at a minimum, you would have to show that you are entitled to bring the case as a class on behalf of people nationwide. During the oral argument in the case, the Trump administration suggested that wouldn't be warranted here and the case would have to be required to be litigated by individuals who are You know of different immigration status

So one set of cases by people who are here without legal authorization another set of cases by people who are here Temporarily, but lawfully so we'll see but that's that's with respect to this somewhat narrow case of birthright citizenship in other future cases respect to this somewhat narrow case of birthright citizenship, in other future cases, if you wanted to bring a class action suit, would you have to hit standards of different types of people involved in the class action? Yes. So there's a civil rule of procedure that lays out the requirements for doing a class action. And then a defendant in a class action can say, actually, there are different groups of people here and you should require them to litigate separately. Okay. Now back to per thread citizenship. So we have 30 days for the standards from the administration to be unveiled.

And in that time period, what do you expect to happen? I expect there to be a lot of litigation and a lot of chaos as lower courts try to apply these new legal standards. And honestly, I expect there's some possibility they make their way back up to the United States Supreme court, because if a lower court gives any set of plaintiffs, a nationwide relief, you know, the Trump administration is going to ask the Supreme court to revisit it, right? And if there's no nationwide relief, then my guess is the plaintiffs

will ask the Supreme Court for it. It strikes me that we've entered a situation in which basically SCOTUS is going to have to clear every single nationwide relief or nationwide injunction on a whole host of different merits. I think that's right. And to the extent that justices were trying to fix the problem of the shadow docket and emergency docket based on nationwide injunctions they failed. Explain what the shadow docket is. I know what it is. without full briefing or oral argument. So there are oftentimes requests from the federal government to stay or pause a lower court decision that had ruled against the federal government.

The other thing that has happened here historically is that um, you know defendants or plaintiffs or whatever people who are against the uh sitting administration's policies will go court shopping or district shopping to get a nationwide injunction because they want to use the judiciary as a way to put a pause on what they think is an unconstitutional law or executive order. This happened regularly in the Biden administration. It's funny that that history is sort of getting lost in here. It happened over DACA, I believe. Do conservatives recognize that they're going to have limitations

here too in the future or is this going to be sort of consistently applied or do we expect that the court will kind of contort itself and figure out a way to screw over Democrats when they regain power? I would not hold out hope for a ton of consistency here. The fact that they retain this standard of nationwide injunctions are okay when necessary to provide states with complete relief, give them a fair amount of flexibility to say, well, Texas gets nationwide injunctions when a Democrat is president. But should California have the same standard when a Republican is president? I expect that Javier Becerra might be very busy in the next couple weeks, months, years. Um, what did you make of, um, the ruling from Amy Coney Barrett?

And then also the response, which seemed a little bit abnormal, uh, from Katanji Brown Jackson, abnormal in the sense that it was offered in addition to Sotomayor's dissent. Well, so it's not uncommon for multiple democratic appointees to write dissents in some of the big cases. This also happened in the immunity decision last term where Justice Sotomayor wrote the primary dissent and Justice Jackson wrote a separate dissent. So I think that the multiple dissents underscore how concerned the Democratic

appointees are about this ruling. You have both Justice Sotomayor and Justice Jackson basically saying this court has become complicit in this administration's lawlessness. And Amy Coney Barrett responded to that in a way that was kind of like, I mean, it got maybe I'm just not familiar. I'm certainly not as close a court watcher as you are. But I don't recall two justices sort of addressing each other this directly, but Amy Coney Barrett responded by saying, you want a sort of a runaway judiciary in response to a runaway presidency, and that is not something that the court can entertain. That was her pushback. Yeah. So she accuses Justice Jackson of wanting an imperial judiciary. Yes.

Even as she expresses the concern about an imperial executive, I'm not sure that I would say this is sharper or more pointed than some back and forths between justices have been. It did strike me honestly as rather curt in that she said, we're not going to dwell on justice Jackson's argument. Yeah, I did notice that. Yeah. Like we observe only this jab. Yeah. Yeah.

Like I'm not going to even bother to respond and. But she did respond. A classic. I'm not really gonna. Then you just say, um, what do you, I guess let's, let's just end on the sort of the larger picture though, because those do raise some real serious questions i mean the nation what injunction. I remember watching that whole back and forth between kate and josh holly about this and whether this is totally unprecedented and kate who responded well in fact the reason there's so many nation one injunctions are so many. flagrantly unconstitutional laws by this administration. At least you have to consider that. What does this mean for

for us as a society going forward, you think, with respect to the Trump administration, which is really pushing the bounds of laws in a host of different directions, not just immigration, but in terms of congressional impoundments and spending and things like that. I could speak forever about this topic. Sure. So for now, I guess I would just say, one, it's really eliminating the most effective tool that lower courts had for reining in the Trump administration and blocking some of their illegal policies. I think this is going to dramatically change what civil rights litigation looks like. Second is there is a lot of irony to the fact that the Biden administration

was subject to numerous nationwide injunctions, repeatedly asked the Supreme Court to do something about that in cases where nationwide relief didn't seem quite so warranted as it did here. And the Republican justices decide that five months into the Trump administration, in a case where nationwide relief seems pretty warranted that now is going to be the time that they are all of a sudden going to say nationwide injunctions are generally inappropriate. And third is I am really concerned about the extent to which this court has participated in efforts to basically kick the legs from under the table of our mechanisms to enforce civil rights, including the reconstruction amendments. You know, here you're basically again taking away the most effective tool for ensuring birthright citizenship continues to exist on a nationwide basis. Last term, they said states cannot enforce Section 3 of the 14th Amendment against Donald Trump and disqualify him from office

based on his participation in the insurrection. The immunity decision from last term said he cannot face criminal prosecution for the a lot of the actions he took while in office to overturn the results of the 2020 election. And so I take the Democratic appointees concerns quite seriously when they say, look, this is an invitation for the government to bypass the Constitution. Justice Jackson says a Martian arriving from another planet would look at this and say, what good is the Constitution then? And they characterize it as this existential threat to the rule of law.

One of the things, maybe I'm misremember from the what I read, but I believe she referenced what happens if a president next, you know, down the line decides they want to confiscate everyone's guns. Yep. What do we see? What would the court say in that situation? And under this logic, what would the court say? I mean, I guess you'd have to get some sort of class action suit or a state government

would have to bring the suit say, no, this is a violation of the Second Amendment. You can't do this. And then you might be able to get nationwide a nationwide relief but that's it. You know again as we were talking about earlier I just think the legal tests the court have adopted give them such flexibility to continue to say nationwide relief is warranted where we kind of like it whether that is through class actions, through decisions by particular states that they say warrant nationwide relief, or there's another exception we haven't talked about, which is it might still be the case. Administrative procedure. Exactly. So talk about the Administrative Procedure Act and why that got a carve out here. So the Administrative Procedure Act is a federal law that allows courts to set aside or vacate administrative rules or regulations.

And so basically that is a possibility for courts to block on a nationwide basis by vacating policies that are issued by agencies under the Administrative Procedure Act. But that set of cases where nationwide relief could be warranted does not include the sort of immigration policies issued by the president through executive order. And so that too just seems like a kind of gerrymandered. What are some of the policies that are being done under the APA? So some of the APA policies, so it depends a little bit because there's an uncertain category of policies where... Why did I open up this? You know, you invite a lawyer on and ask about legal process and procedures,

and this is what you're going to get. But, you know, if you think about, for example, the student debt relief cases, for example, you know, those were subject to the Administrative Procedure Act. Whenever an agency issues a rule or a regulation, that too is going to be subject to the Administrative Procedure Act. When ever an agency issues a rule or a regulation, that too is going to be subject to the Administrative Procedure Act. So let me try to put this in a bow and tell me if I'm totally off. Constitution all good? Yeah, he's the constitutionist there. We came out on that one. But the administration got a very big victory today in that they can now have real ways to bypass lower courts who try to issue nationwide injunctions.

However, if you're on the other side of the equation, there are a few reads you can grab at, which is there are avenues that, I mean, it's going to be more burdensome. You're going to be subjected to the Supreme Court's decision about whether it qualifies their vague standards, but your avenues are not entirely closed off to get nationwide injunctions around certain issues. And then when they're done through the Administrative Procedure Act, you have even more avenues that are at play for getting nationwide injections. And so what we're going to see is probably a flurry of more legal activity, more sort of thoughtful ways to kind of create class action lawsuits and things like that,

and we'll end up in somewhat of a similar place. I'm not sure we are going to end up in a somewhat similar place, but that's just because- Back to the Supreme Court is one of my similar places. Yes. Okay. We are going to end up with a lot of because back to the Supreme Court is what my similar places. Yes. Okay. We are going to end up with a lot of these issues in the Supreme Court, but I think that the landscape is going to look different in that there are going to be fewer nationwide injunctions and that they are going to skew against democratic administrations and less so against Republican ones. But they were already there.

Okay. That's fair. Um, but now they're just making it formal, right? Like this is basically the topic making it formal, right? The topic of my book right like declaring um preference for republicans and conservatives to be better when it's out in the open And you don't have to jet dance around it. All right, uh, and finally that is not a mystic take. Yeah, i'm trying Because you asked for a uh constitution Still intact

I think it is in a little worse shape today than it was yesterday. I mean, you know, sure. But I don't want to get, I don't want to get too skies falling about this. I mean, there's definitely skies falling element to it for sure. But I don't want to say it's burning down. No, like I wouldn't put this as the thing that puts us over the ledge into the constitutional crisis. I kind of think we were already there. We were already there. We were already there. We were already there. We were already there. it's burning down. No, like I wouldn't put this as the thing that puts us over the ledge into the

constitutional crisis. I kind of think we were already there and this is just an added bit that makes our situation more difficult. I will say the thing that kind of gets mean is that it's, you know, we have two instances now of different branches of government just sort of forfeiting their powers and then the executive just kind of gobbling them up. So legislatively Congress has basically been like do whatever you want and now you know the judiciary saying well we're gonna forfeit a lot of stuff. All right Leah thank you so much I'm gonna get your book again it is Lawless how the Supreme Court runs on conservative grievance fringe theories and bad vibes. Leah Lippman thank you for joining the

program.