2nd July 2025
A re-statement of the rule of law in Trump v Casa – the universal injunctions case
Some dissents are for the ages. In the United Kingdom, one such momentous dissent from a judge in the minority was that of Lord Atkin in the wartime case of Liversidge v Anderson.
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In the recent – and horrible – case of Trump vs Casa there is another such dissent, this time from Justice Sotomayor.
This blog has already introduced the case (here) and set out why the majority opinion is shoddy even on its own terms (here).
Instead of summarising and paraphrasing her dissent, there are passages which need to be read in the original. Some people are deterred from reading formal(-looking) documents like judgments, and so in this post I am setting out what she said. Please read what is set out below (which I have broken up into smaller paragraphs).
“Children born in the United States and subject to its laws are United States citizens. That has been the legal rule since the founding, and it was the English rule well before then.
“This Court once attempted to repudiate it, holding in Dred Scott v. Sandford, 19 How. 393 (1857), that the children of enslaved black Americans were not citizens.
“To remedy that grievous error, Congress passed in 1866 and the States ratified in 1868 the Fourteenth Amendment’s Citizenship Clause, which enshrined birthright citizenship in the Constitution.
“There it has remained, accepted and respected by Congress, by the Executive, and by this Court.
“Until today.
“It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship.
“Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it.
Undeterred, the Government now asks this Court to grant emergency relief, insisting it will suffer irreparable harm unless it can deprive at least some children born in the United States of citizenship. […]
“The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court.
“Why?
The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice.
“So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone.
“Instead, the Government says, it should be able to apply the Citizenship Order (whose legality it does not defend) to everyone except the plaintiffs who filed this lawsuit.
“The gamesmanship in this request is apparent and the Government makes no attempt to hide it.
“Yet, shamefully, this Court plays along. A majority of this Court decides that these applications, of all cases, provide the appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all. In its rush to do so the Court disregards basic principles of equity as well as the long history of injunctive relief granted to nonparties.
“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship.
“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.
“Because I will not be complicit in so grave an attack on our system of law, I dissent.
[…]
“The rule of law is not a given in this Nation, nor any other. It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.
Today, the Court abdicates its vital role in that effort. With the stroke of a pen, the President has made a “solemn mockery” of our Constitution. Peters, 5 Cranch, at 136.
“Rather than stand firm, the Court gives way.
“Because such complicity should know no place in our system of law, I dissent.”
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Justice Jackson concurs (again broken into shorter paragraphs, and emphasis added):
“I agree with every word of Justice Sotomayor’s s dissent. I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.
“It is important to recognize that the Executive’s bid to vanquish so-called “universal injunctions” is, at bottom, a request for this Court’s permission to engage in unlawful behavior.
“When the Government says “do not allow the lower courts to enjoin executive action universally as a remedy for unconstitutional conduct,” what it is actually saying is that the Executive wants to continue doing something that a court has determined violates the Constitution— please allow this. That is some solicitation.
“With its ruling today, the majority largely grants the Government’s wish.
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Like Atkin’s famous war-time speech, these dissents should endure.
These dissents have got the fundamental issue right, and they have said the right things about that fundamental issue.
What is currently happening in the United States is nothing other than a polity voluntarily sabotaging itself.
Congress and the courts could stop it. Yes, there is Trump – but there are always Trumps. But instead of checking and balancing Trump, Congress and the courts are nodding and clapping instead.
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The next post in this series will be an overall assessment of this unfortunate case.
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This dissents reads as the sort of statement of such fundamental principle, that one can foresee it being taught in High School to those as yet unborn. But not, perhaps, in American High Schools.
It’s not the clear intent to bulldoze the rule of law to implement a fascist dictatorship, but the tiny glimmers of hope which hurt the deepest.
Many thanks indeed DAG. Please persist in your review these wild administrative decisions.
One day, when you have time, I’d be grateful if you could define ‘fascist’ for us
I am sure you can define the word for yourself! It is not a legal term and so I have no greater claim to defining the word than anybody else.
To my English trained eye it strikes me that the majority have not managed to prevent the lower courts from preventing the executive from implementing unconstitutional orders. They have ruled that there is no such thing in US equity as a universal injunction, but leave it open to a district court to give ‘complete relief’ to a plaintiff. That is to say, no injunction for the whole world. However, if a plaintiff can show that nothing other than an absolute ban on implementing the executive order will suffice, the court can, for that plaintiff, prohibit the government from enacting its order. This is a high threshold, but the threshold for a ‘universal injunction’ was already high.
Casa argued, if I followed the minority opinion correctly, that they had so many members across so many states, that nothing short of a blanket ban on enforcement would do.
In short there never was a ‘universal injunction’. There was simply an injunction, granted to the plaintif, restraining the President from implementing his executive order. An injunction against an individual granted to an individual was clearly known to English Lord chancellors of the 18th century.
I am almost certainly wrong or the dissent would have made it clear that, even on the majority’s view, nothing prevents the lower courts from doing that, but I would like to know why.
Without the rule of law, there can be no democracy. I’m finding it difficult to understand Congress; they must either be indifferent or plain ignorant. Whilst I hesitate to use descriptions such as venal or evil, their carelessness makes them complicit in what will now follow.
Encouraging to see that the writings of Lewis Carroll have been referenced/quoted in a landmark case. (Liversidge v Anderson., Lord Atkin and Humpty Dumpty from Through the Looking Glass).
Reminds me of the same mindset that executed/enacted the Ermächtigungsgesetz (24.03.1933) in Germany.
I hope – with no real conviction – that they know what they are doing.
Regrettably they know what they are doing. That is exactly the problem. Project 2025 has been a long time in planning and preparation. Now we are witnessing execution.
I actually meant the voters.
The MAGA team et al – as you say – have been well prepared post-T1.
I’m struck by the strength of mind it takes to write that, as much as the analytic clarity. It will be easy in ten or twenty years’ time to recognise what a turning point the SC’s majority decision has been, but the dissenters have done the incredible thing of recognising it as it’s happening.
Everyone is subject to normalcy bias. There must be a voice even in the dissenters’ minds saying ‘Aren’t you over-dramatising this …’.
To have the clarity of mind to recognise that, yes, this really is as historically bad as we fear .. and then the courage to say it .. that’s impressive.
And may be costly.
There can be no action without reaction. When law is subject to dictat, even supported by the highest of courts, there will be a reconning. What and how remains to be seen.
I find a deeper concern here, not so much in the issues that Justice Sotomayor calls out – which are entirely valid, but with regards to the ‘Modus Operandi’ of the majority.
Where broad precedent contradicts their desired outcome, they rule narrowly; where they are asked to rule on a narrow set of facts, they declare the need to rule “for the ages”; where contemporary understanding of the law challenges their desired result, they promote textualism; where the actual language of the Constitution clearly precludes their chosen course, they side-step and answer a different question. Where a question is raised that was expressly considered as part of confirmation hearings for recent appointees, they gleefully forget their carefully-considered responses and contemptuously act as the Senate minority feared they would.
One of the most disturbing elements of the Roberts’ court is their willingness to ignore *everything*, to manipulate the questions that come before them, to selectively interpret each element, for the sole purpose of enabling them to push the nation further and further towards an extreme right-wing society.
The rate with which just eight people have destabilised a nation of laws is as shocking as it is dangerous. Eight? Yes: President Trump, Mitch McConnel [who manipulated Senate rules to block Obama’s appointment of Merrick Garland and rush through that of Amy Comey Barrett] and the six conservative Justices.
There is no rule of law. There is only the Rule of Roberts.