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Much like its opinion exactly a year ago in Trump v. United States, the Supreme Court’s opinion in Trump v. CASA dramatically limiting federal courts’ ability to issue nationwide injunctions will result in more power and less accountability for the president. The Supreme Court has now relieved President Donald Trump of one of the key constraints he has faced in his more than five months in office.
But the power transfer that will result from this opinion is not only from the judiciary to the president, but also within the judiciary. That’s because the Supreme Court’s conservative majority also suggested that the Supreme Court, alone among the federal courts, can and will continue to provide uniform national answers to pressing legal questions, on both a preliminary basis and a final basis.
The court already commands outsize power within our constitutional order; this decision demonstrates a new degree of imperiousness, seeming to co-sign the Trump administration’s contempt for the lower courts while announcing that its own edicts will continue to command obedience and respect.
The decision by the court’s conservative majority offers yet more evidence for the transformation of the Supreme Court. Though often cloaked in a language of neutrality and humility, the conservative majority’s actions — in the critical discretionary choices these justices have made about what cases to take, when to intervene and what interpretive methods to use — speak more clearly than its rhetoric about the court’s conception of its own role, which is neither neutral nor humble.
In Trump v. CASA, the Supreme Court could have definitively decided that President Trump’s executive order purporting to end birthright citizenship is flagrantly unconstitutional and may not be enforced. Instead, the court announced that it alone can decide such matters on a nationwide basis — and that it would not do so here.
In his concurrence, Justice Brett Kavanaugh underscored this point by emphasizing, in case anyone doubted it, that “this court, not the district courts or courts of appeals, will often still be the ultimate decision maker” on the legal status of statutes and executive actions.