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The Supreme Court heard oral arguments on Thursday in a monumental battle over Donald Trump’s executive order stripping birthright citizenship from the children of many immigrants. But the justices barely discussed the constitutional question at the heart of the case; instead, they devoted most of the session to a debate about the three “universal injunctions” currently blocking Trump’s policy nationwide. A majority of the court has expressed misgivings about sweeping injunctions that box in the executive branch—but during arguments, the administration’s brash claims may have reminded the justices why these tools are so crucial in the first place.

On this week’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the case and its alarming implications for every person’s ability to claim the protections of federal court rulings. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: One thing that looms over this whole case is which justices want to go along with the pretense that everything is fine and regular at Trump’s Department of Justice, and which justices are basically saying: “I think you’re acting in bad faith here and I think you’re going to do more bad things.” Justice Elena Kagan came close to the line of just saying to Solicitor General John Sauer: “I think you’re going to do really bad things.” In a colloquy with Sauer, Kagan said: “Let’s assume that you lose in the lower courts pretty uniformly, as you have been losing on this issue … why would you take the substantive question to us? You’re losing a bunch of cases. This guy over here, this woman over here, you know, they’ll have to be treated as citizens, but nobody else will.”

Mark Joseph Stern: This is a classic Kagan ninja move. It’s subtle but so vital to understand. The Justice Department is making a weird argument that it doesn’t have to abide by district court decisions except as to the named plaintiffs. It’s also saying that district courts can’t issue universal injunctions, so only the named plaintiffs benefit. And the Justice Department says that same rule applies to the federal courts of appeals. So if, say, the 9th Circuit rules against the birthright citizenship order, the government only has to respect that decision as to the parties in the case, and can keep enforcing the executive order against everybody else—the tens of millions of other people who live within the 9th Circuit.

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But the Justice Department has not applied this principle to the Supreme Court. It says: “Oh, we’ll respect a decision from the Supreme Court.” That tracks what Trump keeps saying about respecting the Supreme Court but not lower court judges—it’s Trump’s policy translated into legalese. Solicitor General Sauer is saying that the Justice Department will embrace judicial supremacy with respect to the Supreme Court, and apply its decisions to every person in the nation, which will fill the gap that’s left if nationwide injunctions go away.

So the issue Kagan flagged here is: What if a case never gets to the Supreme Court? What if all the lower courts are in agreement that the Trump administration is wrong and rule against his executive order? Well, if Sauer’s scheme prevails, the Justice Department could simply decline to appeal any of those decisions to the Supreme Court. Then the Justice Department could turn around and say: “Well, we don’t have to respect the decisions by these lower courts, except with regard to the named plaintiffs.” And everybody who’s not a part of the litigation gets screwed. If you aren’t a plaintiff, the government can take away birthright citizenship for your kids, deny them benefits, and deport them. And there’s nothing you can do except hire your own lawyer and slog your way to a new injunction that applies to you. As a practical matter, hundreds of thousands of people are not going to have the resources to do that.

It’s important to note that this is literally the strategy. Sauer was willing to promise that the Justice Department will abide by an order of the Supreme Court, but not the lower courts. The plan almost seems to be to win by losing. The administration will take a handful of losses with specific plaintiffs knowing there’s no mechanism to protect everyone else. So, as you say, everyone else is screwed. 

It sounds like Sauer even lost Justice Amy Coney Barrett on this exact question. There was a palpable moment when she seemed to ask, incredulously, “Did you just say you’re not going to listen to what a circuit court says?” And the most Sauer could promise is that they would “generally”—though not always—abide by circuit court judgments. The colloquy is really quite amazing, because we have the solicitor general telling Barrett what Trump says on TV, which is that the government doesn’t have to listen to judges it doesn’t like. And as legal scholar Jack Goldsmith has pointed out, the principle that allows the Justice Department to say “We don’t like your precedent and we won’t follow it” to circuit courts could also apply to the Supreme Court!

Exactly, and that’s why the theory that Sauer put forward is utterly incoherent. Because if it is true that lower court decisions apply only to the named plaintiffs—and the government need not respect them as to other parties—there is no reason why Supreme Court decisions should not also apply exclusively to the named plaintiffs. Which means the government could ignore Supreme Court decisions with regard to everyone except the parties to the specific case that the court decided. All that Sauer could offer in response to Barrett and Kagan pressing him on this point was that the Justice Department respects the Supreme Court, which is what Trump keeps saying. But the justices led him to the next obvious question: If you’re saying that the courts of appeals can be defied, why not the Supreme Court as well? And Sauer had no answer.

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I think Barrett saw that what Sauer is putting forward is fundamentally a game. It’s a game where the government can keep losing, then parlay those losses into a win by keeping a case away from the Supreme Court forever. And there’s nothing that binds the Justice Department to Sauer’s representation that it will respect the Supreme Court. So the consequences of this argument are pretty vast. If you take away the principle that the Supreme Court’s decisions are binding on everyone, and you take away the district courts’ power of nationwide injunctions to ensure that everyone’s rights are protected, then you have effectively taken away judicial review. And that seems to be the end goal of the Trump administration’s battle in this case.

You can almost see in this an inexorable battle between the imperial court and the imperial presidency that the court itself created. And I heard these colloquies with Kagan and Barrett as a kind of rubber-meets-the-road moment, where they were like: “You need to promise us that this stops here.” The justices were almost breaking through the fourth wall.

Oops! The Supreme Court gave the president all the tools to bigfoot the judiciary, and now he’s doing it. Who could have seen that coming?

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