SCOTUS conservatives end "universal injunctions" in birthright citizenship cases

Justice Barrett wrote the 6-3 decision that created more complications than it provided answers. Stark dissents questioned the ruling's effect on the rule of law.

On Friday morning, the U.S. Supreme Court’s conservative majority took a slice out of the framers’ conception of the separation of powers, barring federal judges from entering so-called “universal injunctions” — court orders blocking the executive branch from enforcing challenged laws and policies against anyone, even non-parties to the litigation, anywhere.

By issuing the 6-3 ruling in three cases over President Donald Trump’s executive order purporting to end birthright citizenship, moreover, the court created nationwide confusion over what happens next with the executive order, which all six lower courts in the three cases before the justices had found to be likely unconstitutional.

In so doing, Justice Sonia Sotomayor wrote in dissent, the court “abdicates its vital role” in fighting for the rule of law.

For its part, however, the majority — in a relatively short opinion by Justice Amy Coney Barrett — fastidiously avoided the constitutionality of Trump’s order and left uncertain even how these challenges will proceed, let alone whether the order will ultimately be able to go into effect.

For now, the Trump policy in the executive order purporting to end birthright citizenship will not “take effect” for 30 days.

During that time, expect significant movement in the challenges to the executive order, which the Supreme Court sent back to the lower courts whose authority it restricted on Friday so that they can consider whether the injunctions will stand under new, amorphous rules.

By ruling as it did only on the remedy of universal injunctions and not on the constitutionality of Trump’s executive order, though, the Supreme Court gave the Trump administration a powerful new tool to avoid accountability — a tool that the dissenting justices made clear was employed in this very case and should have itself been a reason to reject the administration’s entreaty to partially block the injunctions entered in the cases.

Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote in dissent that this avoidance by the Trump administration and, in turn, by the majority through its ruling was, essentially, needed because showing the executive order is constitutional would be “an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.”

And yet, the court’s ruling on Friday upended what it means to do justice in America — and threw into doubt what will happen even with such a clearly, patently unconstitutional executive order.

As part of its avoidant ruling, moreover, the court created new complications.

By ending universal injunctions, the court — by its own admission — will put more pressure on other litigation that can result in broad relief, like class-action lawsuits. Within hours of the Supreme Court’s decision that fallout was seen, when the organizational plaintiffs in the Maryland case that was before the justices filed an amended complaint seeking class certification on behalf of a class of “all children who have been born or will be born in the United States on or after February 19, 2025, who are designated by Executive Order 14,160 to be ineligible for birthright citizenship, and their parents.“

In short, and as several justices suggested or outright stated in their writings in the case, Friday resolved little other than that federal judges cannot issue universal injunctions. While that is an alarming development for our constitutional republic — as Jackson laid out in a sharp dissent that she wrote only for herself, which prompted a nearly as sharp response from Barrett — it left much unsaid about what happens next with the executive order at the center of this case.

Joined by all five Republican appointees, Barrett on Friday held for the court that universal injunctions “lack[] a historical pedigree“ — as determined through her look back through legal history — and, thus, cannot be issued by a federal court acting in equity (essentially, acting to do justice) under the Judiciary Act.

That conclusion, Sotomayor wrote in dissent, “distorts well-established equitable principles several times over.“ Sotomayor responded at length to how she believed that Barrett got the history wrong.

Or, as Jackson put it, by barring universal injunctions against clearly unconstitutional actions, “The Constitution is flipped on its head, for its promises are essentially nullified.”

Despite the majority’s dismissal of universal injunctions, it nonetheless also held that injunctions can provide “complete relief” to the parties and that doing so can “sometimes advantage nonparties” — the first of several follow-up complications (aside from the ruling itself) raised by Friday’s ruling.

The problem here is that all of the district courts believed that’s what they were doing — and the judges said so in their rulings. As Sotomayor explained, “[E]ach of the lower courts here correctly determined that the nationwide relief they issued was necessary to remedy respondents’ injuries completely.“

Nonetheless, as to the organizational lawsuit led by CASA, the court held on Friday that “prohibiting enforcement of the Executive Order against the child of an individual pregnant plaintiff will give that plaintiff complete relief” — despite the complications of doing so for organizations with thousands of members in all 50 states, complications that led the district court in that case to issue the nationwide injunction there.

As to lawsuits filed by multiple states, however, the majority held that the question of those injunctions’ nationwide effect “is more complicated” because “the relevant injunction does not purport to directly benefit nonparties.” It did not resolve the question of whether those injunctions need to be nationwide in order to provide “complete” relief to the suing states, with Barrett writing that the court was “declin[ing]” to resolve the question.

After discussing the arguments raised on both sides, Barrett concluded: “The lower courts should determine whether a narrower injunction is appropriate; we therefore leave it to them to consider these and any related arguments.”

For his part, Justice Clarence Thomas wrote a concurring opinion, joined by Justice Neil Gorsuch, advising that, in his view, the “complete” relief possibility is just that. Sometimes “a court cannot award complete relief,” he wrote, because of constitutional limits on the judicial power.

In addition to that question, the majority acknowledged multiple other routes for broad relief — and the questions those routes raise. As to the earlier mentioned class-action cases, that possibility prompted a concurring opinion from Justice Sam Alito, joined by Thomas, discussing how broadly defined classes could create a “significant loophole to today’s decision.” Alito also noted that “third-party standing” could be misused to create another “loophole.”

Additionally, Barrett acknowledged that a “distinct question” not resolved on Friday was the role of lawsuits brought under the Administrative Procedure Act and whether that law “authorizes federal courts to vacate federal agency action” with nationwide effect.

For his part, Justice Brett Kavanaugh attempted to sand down the harshest edges of the ruling by acknowledging that “it is not especially workable or sustainable or desirable to have a patchwork scheme, potentially for several years, in which a major new federal statute or executive action of that kind applies to some people or organizations in certain States or regions, but not to others.” As such, he concluded — albeit only for himself — that “[t]he answer typically will be” an interim ruling by the Supreme Court, which he insisted would “effectively settle, de jure or de facto, the interim legal status of those statutes or executive actions nationwide.”

But, while the courts figure out this haphazardly, incompletely created new regime, Sotomayor made clear in dissent that there will be very real, immediate consequences — even if Kavanaugh’s concurrence rules the day going forward. While awaiting the court’s interim ruling, Sotomayor warned:

[T]he Government may feel free to execute illegal policies against nonparties and cause immeasurable harm that this Court may never be able to remedy. Indeed, in these cases, there is a serious risk the Government will seek to deport newborns whose parents have not filed suit if all the injunctions are narrowed on remand. That unconscionable result only underscores why it is necessary, in some cases, for lower courts to issue universal injunctions.

For Jackson’s part, most of her dissent was a step-back, take-a-deep-breath look at the effect of Friday’s decision on the rule of law — and the role of the judiciary.

The majority, Jackson wrote authorized a “zone of lawlessness” with its ruling. In one zone, she wrote, “law reigns” through court rulings protecting “named plaintiffs.” In the second zone, however, the executive can enforce unconstitutional actions against “those who lack the wherewithal or ability to go to court“ — a reality that “will disproportionately impact the poor, the uneducated, and the unpopular.”

The decision is, Jackson wrote, “yet another crack in the foundation of the rule of law.”

And though Barrett responded that Jackson’s “startling line of attack” was not “tethered” to historical sources or “frankly, to any doctrine whatsoever,” we will see in the weeks, months, and years to come who had a clearer view of what happened on Friday.