Non-universality, 24 hours later (updated to 48 hours later)

The temperature around CASA is high. Some thoughts 24 hours after the decision and my original post, and having had an opportunity to think about the opinion and to hear the discourse around the opinion. The podcast Advisory Opinions analyzes the opinion with Will Baude and Dan Epps of Divided Argument.

• Sam Bray (in The New York Times) and Nick Bagley (in the The Atlantic) attempt to rationally explain what the Court said, why it reflects a better/more proper judicial role, and the many avenues open for broad relief. As Nick puts it "the case represents a stark rejection of a conception of the judiciary as a free-roving expositor of federal law. That may, in time, orient judges to a healthier understanding of their (limited) role in our constitutional system."

• Without saying as much, Justice Kavanaugh's opinion adopts the view of the Court's role that Mark Lemley and Steve Vladeck have criticized--in which only the Supreme Court matters and the lower courts are perfunctory steps litigants must take to get to the Supreme Court and whose judgments should not last long. SCOTUS can exercise original jurisdiction in a vanishingly small number of cases, but Kavanaugh argues that they should seize the power to achieve the equivalent result through the shadow docket. Would it make more sense (and be cleaner procedurally) to allow states to pursue original § 1251(b)(2) through suits against the United States?

• People online are arguing that Justice Barrett called Justice Jackson stupid. MAGA asshats have seized on that to argue that she is dumb and a DEI hire and worse; liberals are mad at Barrett for the suggestion. Barrett uses unusually sharp language in rebutting the dissent.  But I do not think Barrett suggests stupidity as much as a fundamentally different and incorrect view of the judicial role. I happen to share Barrett's vision and reject Jackson's. But I do not see anyone as suggesting stupidity or incompetence. Perhaps she should have been more restrained. But I doubt she was suggesting what has been attributed.

• On that note: This dispute reduces to competing visions of the judicial role, who decides what the Constitution means, and what it means for the executive to "ignore the Constitution." Critics who see the decision as licensing lawlessness necessarily adopt any or all of the following: the Constitution means what any court says it means (including lower courts in the interim, until a higher court speaks); the executive has no contrary say or room to disagree; enforcement of a law is not specific to any target; and the court's word about the law stops the executive in his tracks in all respects as to all people. This is Jackson's dissent and Cooper v. Aaron. And I think it may be Kavanaugh's view, which is why he wants to funnel everything to SCOTUS as soon as possible. But there is no reason in Article III, equity, democracy, Marbury, or the concept of judicial review that requires these to be true.

• If district judges cannot universally enjoin Trump's birthright citizenship EO then district judges cannot universally enjoin Biden's EO forgiving student loans. The objection seems to go to the optics. It somehow would look better if a conservative Court rejected universality while stopping conservative lower-court judges from enjoining enforcement of liberal policies. (Biden SG Elizabeth Prelogar unsuccessfully sought emergency relief on scope in a few cases, although those involved possibly distinct-and-valid APA universal vacatur--see, again, Kavanaugh's concurrence). And using this case for the narrow procedural point (while leaving untouched constitutional merits that everyone agrees are obvious) allows Trump and his minions to misrepresent the Court's decision.

I see the optics point. But it does not matter for the practical purposes of the birthright-citizenship litigation. Imagine the Court rejected universality in 2023. We would be in the same place in June 2025 with respect to the citizenship EO--no universal injunctions. The court must certify a class, grant an injunction protecting the association (and thus its members), or find that New Jersey's injury requires an injunction protecting every U.S.-born person. But liberal critics of the decision seem to reject that state of affairs, regardless of how the Court got there.

In other words, the problem is not how the Court reached non-universality, it is the fact of non-universality. Or, at least, non-universality as applied to the bad things Donald Trump is doing. And here we get the inevitable partisan breakdown--"universality for me but not for thee." Had the Court rejected universality in the mifepristone case or student-loan case, liberals would have cheered. But many would now complain about the other hoops that CASA must clear to challenge this horrible law. I suppose CASA and other plaintiffs would have been on notice and would have sought class certification at the outset, saving some time and effort. But that does not seem to be the complaint.

• Going forward, courts should distinguish a universal injunction from a plaintiff-protective injunction that incidentally benefits others because the complete remedy for the plaintiff necessarily sweeps others. Barrett offered a nuisance action against a neighbor's loud noise--the plaintiff-protective remedy (lower or stop the music) necessarily benefits other neighbors. Legislative districting offers a better example--an injunction allowing plaintiff to vote in a valid district necessarily allows other people to vote in a valid district (not surprising that this majority would not want to use voting rights as an example).

This injunction should not be understood as universal. The injunction orders what the court believes gives the plaintiff complete relief; the benefits to others are incidental and not part of the injunction. Thus, if New Jersey is correct that everyone in the country must have birthright citizenship to protect it from administrative burdens, the injunction protects New Jersey by its terms; it protects people outside New Jersey only as an incident of that.

• On the podcast, Will offers a counter-factual post-Brown world in which the NAACP targeted specific school districts for party-specific relief (this is the position Justice Black urged in Brown II); he argues they would have achieved deeper integration more quickly in those districts, which might have had precedential effect elsewhere. Note that school cases presented the same scope-of-relief issues courts face now. Courts could give a small group of plaintiffs complete relief by allowing them to attend their chosen school without ordering integration or offering any relief to non-parties. The Court amended Rule 23(b)(2) in 1966 to allow plaintiffs to seek classwide relief for all similarly situated students.

• Many people are understandably worried about non-party babies falling through the cracks if they are unable to sue. I wonder if this brings us back to Will's point about how the NAACP might have proceeded post-Brown in a broad litigation strategy. And does this offer a model for CASA and other immigrant groups (absent class certification)--outreach and education of pregnant women and families and a series of lawsuits where people live, whether as individual or class actions. More importantly, at least for the EO, the image of a single, poor non-citizen with a U.S.-born newborn tryng to navigate the courts does not depict the legal landscape. As with desegregation, a web of expert organizations are able to drive this litigation. I concede this will be difficult, costly, resource-intensive, and time-consuming. But plaintiffs--and cause lawyers--are not entitled to the cheapest and easiest approach to constitutional litigation (just as the benefits of offensive litigation do not render defensive litigation inadequate).

• I mentioned this article arguing for class treatment of challenges to the law firm EOs. One of the authors--David Marcus--wrote this 2020 article showing that Wal Mart had not  destroyed or undermined Rule 23(b)(2) public-interest class actions in lower court. Marcus creates a typology of class actions.Type II includes cases in which one law violates rights in an undifferentiated way but courts could remedy violations individually. birthright citizenship EO, is a Type II case--the EO purports to strip everyone in the class of citizenship but a court could grant individual remedies by protecting only the plaintiff from losing her citizenship. Marcus shows that however much Wal Mart narrows class actions, it does not affect Type II actions. (I may have more to say about this).