In the last day of the U.S. Supreme Court’s term, the justices severely – and maybe entirely – limited the ability of district court judges to issue these controversial nationwide injunctions.
This is what the left has been using to stop President Donald Trump’s agenda. It has been resistance 2.0. And if you could have heard Solicitor General John Sauer go in there to argue this case, he was saying all the things that we have been talking about on The Megyn Kelly Show – they pick their favorite federal district court judge in the most liberal jurisdiction, and they go in and ask that guy, ‘Gee, hasn’t Trump violated the law? And shouldn’t we issue a nationwide injunction on that executive order and that executive order and that executive order?’ And, therefore, they shut down his entire second term agenda.
It has been working for them. You find the most liberal judge, you make your case, you get your nationwide injunction, and yet another piece of Trump’s agenda is done. And this court was listening. They agreed. They decided the answer to potential executive overreach is not judicial overreach and pretending the courts have more power than they do to stop executive initiatives on a nationwide basis (as opposed to on a plaintiff by plaintiff basis, where we look at this plaintiff to see if he has adequately alleged harm and decide whether, for example, an executive order should be enjoined in this case).
So, as a result of today’s ruling, these leftists likely will not be able to march into a far-left judge in Boston or in San Francisco or in Washington, D.C., and get a Trump policy they don’t like put on hold or ended while their case plays out in the merits, which could take years.
The Case
This particular case stemmed from a very interesting issue, which – FYI – has not yet been decided. It came from President Trump’s executive order putting a stop to birthright citizenship (meaning, if you’re born here, you have citizenship; even if you are born to two illegal immigrants).
The Trump administration is trying to challenge that by saying the Constitution is actually a little bit more ambiguous than it sounds (and there is some legal support for that). But that part of the case is going to play out on the merits, and there will eventually be a ruling on whether the administration is right or wrong on that. The justices did not get to that and whether his executive order is constitutional.
Instead, they ruled on whether these lower court judges who had stayed the effect of that order and said you cannot look at babies being born right now to illegals and say that they are not citizens until we have a final ruling in this case. The Supreme Court said you can stay the effect of this executive order as to the named plaintiffs in this case, but we are not okay with the nationwide injunction thing. Not in this case, and not in all cases. We are convinced lower courts don’t have that authority.
The Opinions
It was a 6-3 decision along ideological lines with Justice Amy Coney Barrett writing the majority opinion. The dissents were blistering. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson are so upset. So is David Hogg. That is how you know it is a good day.
I thought it was smart to have Amy Coney Barrett author this one. She hasn’t written that many. She is becoming kind of, well, loathed by many on the right. And I think it was probably no accident that Chief Justice John Roberts had her take this one. Because it wasn’t just that she sided with the conservatives to uphold Trump’s right not be subjected to nationwide injunctions, but she also pitted herself against a very unpopular member (with the right, at least) of the Supreme Court in Ketanji Brown Jackson.
Those two went at it in their opinions. In one instance, Amy Coney Barrett basically said, ‘Your argument is too dumb for me to respond to.’ Here is what she wrote, in part:
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
She went on to say Jackson chose “a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.” And the hits just kept coming. If you read between the lines, the message was: ‘You’re too dumb for us to argue with; these arguments are beneath contempt; they’re so unpersuasive and sophomoric, we’re just not even going to devote the time.’
What It Means
Justice Sotomayor wrote the primary dissent and tried to say it was gamesmanship from the Trump administration to appeal the issue of nationwide injunctions instead of birthright citizenship. She said her colleagues in the majority fell for it.
But it worked like a charm whether it is gamesmanship or not because the Trump administration has been dealt a nationwide injunction against virtually every executive order the president issued his first week in office. Bit by bit, the actions have been shut down. It has gotten out of control, and the court acknowledged this.
My guest Dave Aronberg was correct when he said nationwide injunctions have, in the past, upset the left and thrilled the right. I was one of the thrilled people when we got a nationwide injunction against former President Joe Biden’s changes to Title IX. I loved that. It was shut down by one judge for everyone across the nation. I am not going to be able to have that moment anymore if we get another Democrat president.
But the Supreme Court made a valid point from John Sauer, which was, yes, this has been happening for some time in recent history, but it has gotten out of control.
Lingering Questions
And this decision does raise an interesting issue on what happens now with birthright citizenship in the short term. The plaintiffs who sued in these particular cases are not going to get bounced out. The court says the named plaintiffs can have the relief they are seeking, and the district court judge has to figure out exactly what that looks like.
But we are not yet sure if it can apply beyond the named plaintiffs. So, the question becomes: Does every illegal couple across America now need to go file a lawsuit to try to keep their kid in the United States or get them a Social Security Number. It is unclear to me, based on what I read this morning, how that is going to play.
‘What a Day’
In any event, what a day it has been at the U.S. Supreme Court. I was a lawyer for about a decade and I covered the high court for Fox News and ABC News for years, and we have just never had a court like this. I realize we love some of the justices a little bit more than we love others. But when the law is clear and the left has gone too far in its excess, we have six justices willing to do it.
This bodes well for a number of issues that are likely to go up to the Supreme Court during the Trump presidency, in particular. And I think we can be heartened to know that, even the justices we may not love as much as we love Samuel Alito and Clarence Thomas, tend to do the right thing when the chips are down.
You can check out Megyn’s full analysis by tuning in to episode 1,097 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.