Judicial departmentalism and universal injunctions

Sam Bray has a series of posts on universal injunctions in advance of Thursday's arguments on the emergency motions in the birthright-citizenship cases, which are likely to focus mostly on scope-of-remedy. I agree with Sam on pretty much all of this. But I want to riff on one thing. He writes:

In the dispute-resolution model, as long as there is vertical precedent, the Supreme Court still decides questions for the entire federal judiciary. Universal injunctions are inconsistent with the traditional judicial role at every level of the federal judiciary, including the Supreme Court. But there is a sense in which the point is academic for the Supreme Court. It does not need universal injunctions; its holdings already have universal effect as precedent for other federal and state courts. If the Supreme Court eliminates the universal injunction, it will be resetting the remedial practices of the lower federal courts, but it will not be restraining its own decisional authority in any substantial sense.

SCOTUS's resolution is not "universal" in the sense of protecting all people. It resolves one case, affirming or reversing lower courts and compelling them to enter some judgment--a remedy that, per Bray's arguments, is limited to the parties. SCOTUS's declaration of the law establishes universal precedent for lower federal and state courts. In a judicial-supremacist world, it also establishes universal precedent for other actors, having "resolved" the constitutional issue.

Judicial departmentalism complicates this story. Its key premise is that SCOTUS precedent does not bind non-judicial actors; the executive can continue to act contrary to SCOTUS precedent. And because SCOTUS' judgment (or the judgment it orders the lower court to enter) is non-universal, the executive does not violate a court order in acting contrary to that prior case. In effect, we start over--new litigation from the new (actual or potential) enforcement targets, new non-universal judgments from the lower courts (bound to apply SCOTUS precedent), new non-universal SCOTUS affirmance (also applying its precedent). The executive keeps losing, of course (barring a change in precedent). But people must litigate to get there. And we do this as long as the executive has unprotected people to target.

This complicated process might offer a further justification for universality. The federal courts (or at least SCOTUS) must be able to grant universal remedies, otherwise no one is safe from an executive willing to pursue new enforcement against new people (not protected by the existing judgment) in the face of certain judicial defeat. At a minimum, the process is the punishment--the executive achieves something by forcing new and repeated litigation, even if he loses at the end of the day. Especially if some enforcement succeeds (in the moment) against those who are not party to any round of litigation.

On the other hand, non-universality helps prevent judicial departmentalism from collapsing into supremacy. The courts get the final word in any case--the judicial view of the Constitution prevails and the executive loses under existing precedent. But nothing stops the other departments from creating and pursuing new cases.