What should we make of the Supreme Court's recent ruling against universal injunctions in Trump v. CASA? What does the dispute in that case tell us about the role of courts in reviewing the lawfulness of executive action? Is this kind of judicial restraint a threat to the separation of powers, or a means of protecting it? Is the decision, or its timing, a product of judicial politics?
In Trump v. CASA, the Supreme Court decided a technical question of judicial relief that has big implications for the separation of powers, the role of the courts, and executive power. It limited what are called “universal injunctions,” where a federal court invalidates executive action everywhere, not just for the people who brought a case.
What is the legal justification for this decision? What are the practical consequences? Why did it happen now? And what are the political implications – and maybe even political causes – of the ruling? What does all of this tell us about future battles between the executive and judicial branch?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Ethan Bueno de Mesquita, the Dean and Sydney Stein Professor at the Harris School of Public Policy, and Samuel Bray, a Professor of Law. Ethan is an expert in politics and political economy, Sam is the leading scholar of the law of equity.
I brought them here to get a handle on this decision, and as you’ll see we approach it from several different angles – technical legal questions, institutional politics, and judicial strategy – that takes us to some interesting places. And if you want more Supreme Court content, check out my other podcast, Divided Argument, an unscheduled, unpredictable Supreme Court podcast that I record regularly with Professor Dan Epps – available wherever you get your podcasts.
But now, have a listen.
WILLIAM BAUDE: In Trump versus Casa, the Supreme Court decided a technical question of judicial relief that has big implications for the separation of powers, the role of the courts, and executive power. The Court limited what are called universal injunctions, where a federal court invalidates executive action everywhere, not just for the people who brought a case.
What is the legal justification for this decision? What are its practical consequences? And why did it happen now? And what are the political implications and maybe even political causes of the ruling? What does all of this tell us about future battles between the executive and judicial branches?
To try to find out the answers to those questions, I'm here with two of my colleagues at the University of Chicago, Ethan Bueno de Mesquita, the dean and Sidney Stein Professor at the Harris School of Public Policy, and Samuel Bray, professor of law. Ethan is an expert in politics and political economy. Sam is the leading scholar of the law of equity. I brought them here to get a handle on this decision. And as you'll see, we approach it from several different angles-- technical legal questions, institutional politics, and judicial strategy that take us to some interesting places.
And if you want more Supreme Court content, check out my other podcast, Divided Argument, an unscheduled, unpredictable Supreme Court podcast that I record regularly with Professor Dan Epps, available wherever you get your podcasts. And now have a listen.
Ethan, Sam, thank you both for joining me. So today, the main focus of the conversation I want to have is something the Supreme Court did a couple of months ago in this case, Trump versus Casa, where it issued a ruling about so-called universal injunctions. And I'd like to try to understand what happened, what we should think about it, and what it means for the bigger picture. So Sam, you are, I think, cited by name more than once in this opinion. So maybe you could just start by telling me and telling us what it is that the Supreme Court did.
SAMUEL L. BRAY: So the key backstory here is a decade of change in the federal courts. So from 2015 to 2025, district courts gave what were called universal injunctions, or nationwide injunctions, or national injunctions. And these would be decisions by one court that would control how the federal government would act toward everybody, not just toward the parties who sued. So that was a big reset on the relationship between the executive branch and the judiciary, and also had implications for the relationship between the lower courts and the Supreme Court. So lots of changes in that 10-year period.
And in Trump v. Casa, which is a case about the president's birthright citizenship order, the Supreme Court said no more universal injunctions. So we're not doing those anymore. Might be doing things kind of like them, but we're not doing those anymore. And that brings to an end a really important chapter of change in the federal courts.
WILLIAM BAUDE: And so what is a universal injunction? And why are we not doing it anymore?
SAMUEL L. BRAY: So the what is it is usually when you sue and you win, you get a remedy for yourself. And universal injunctions are when people sue the government and they win but they get a remedy not just for themselves but for everybody in the country. So that has the effect of one district court in one place in the country can give a decision that controls the legal question everywhere.
So why are we not doing them anymore? There are several layers to this. What the Court settled on is the main reason is the basis for authority for the federal courts to act, especially a statute that gives them their charter for being, does not give them the authority to give these. It only gives them the authority to give traditional remedies given by courts of equity. These are not traditional remedies. You look back to the history. You don't find these so you can't do them now. That's the core of the argument. But there are other layers to it, including the policy effects.
WILLIAM BAUDE: I guess-- so that's the next question to bring out. So one way to think about this is this is the kind of question only a lawyer could care about, right, is what does some old statute say about whether or not you can do this. And with eyes totally blind to the world, the court just looked at the old statute and said, this is what's going on.
It seems like there might be more going on here, though, as there might be another way to think about it, which is is this a good way for the courts to rule for them to issue broad relief? So does that come into it as well?
SAMUEL L. BRAY: It does. And I think I'd want to distinguish three different ways the person on the street should care about these. So first, you can care about them because of the particular government policy being challenged. So in this case, what was being challenged is President Trump's order that purported to say some people born in the United States do not have citizenship, the birthright citizenship order. So you can care about it because of the particular issue. And so when you have a Republican president, you might care about it because you don't like what the Republican president is doing, or you do like what the Republican president is doing. Same for Democrats.
So one way to care about it is at the level of the merits. But the Supreme Court's decision takes these universal injunctions away, no matter who the president is, whether you're challenging Democratic or Republican.
I think there are two other important policy layers here. So one is about how the courts do their best work. And they do it deliberately. They do it slowly. They do it not with the first court that gets to decide, gets to decide it for everybody. So that's something even a non-lawyer could care about. But it's still a kind of lawyerly thing.
The other layer on the policy here is about democracy. And the way democracy works is the elected branches, as long as they're working within the constitutional confines, get to do what they want, whether it's good or bad. And so a lot of the things universal injunctions were stopping were things that were in that category of within the constitutional confines but might be bad, might be good. And so having universal injunctions meant whatever the president wanted to do, from Obama, through first Trump administration, through Biden, through second Trump administration got shut down. And that's not good for our democracy.
WILLIAM BAUDE: Ethan, do you have a reaction to this?
ETHAN BUENO DE MESQUITA: Yeah. I think there's obviously a lot there. So I guess I have-- I'm not a lawyer. I care about it, I guess. So I guess I have a bunch of different thoughts and reactions.
So one is just the why should we care and how we should think about the background facts here. So the background facts just presented were really about inside the courts. And I think the other important background fact in American politics that the facts about the courts, the increasing use of universal injunctions is about creeping imperial precedency, so the executive branch increasingly acting in fairly unilateral ways, unchecked by the legislative branch, perhaps arguably without authorization from the legislative branch.
And this is also, I think, a bipartisan issue. We see an increasing use of executive orders across administrations and certainly, I think, really illustrated very dramatically by both Trump administrations and the Biden administration. And so I think, in some ways, the courts are also reacting to the executive branch running ahead of what we are accustomed to the executive branch being authorized to do. And so then you see these district court judges making these sweeping interim decisions in reaction to the executive branch.
So I think in thinking about the downstream democratic consequences and the downstream policy consequences of the decision, you have to think about this balance of powers game being played between the executive branch, the judicial branch, and the increasingly absent legislative branch.
I guess the other piece that I think is worth talking about here and thinking about is, I think, interestingly, the Supreme Court said this thing about we're not doing this anymore. That is the role-- there's some background thought that the role of the courts is case by case, plaintiff by plaintiff, whatever, to make these decisions.
And we are not supposed to-- contra to maybe Justice Jackson's dissent, we're not supposed to be declaring the law for everybody. They said we're not supposed to do that unless we are the Supreme Court. So the Supreme Court reserved for itself still the right to act in this kind of universal way, it seems. Justice Kavanaugh, in particular, seemed at pains to reserve that right in his concurrence.
And so I think that's an interesting tension and interesting question about how much this is a principled decision, how much this is a political decision. And I think there's lots of interesting kind of political economy and institutional questions about what exactly is the Supreme Court up to here in their relationship to the executive branch.
WILLIAM BAUDE: Yeah. So both of these are things I want to get into. And maybe we could start with the first one, which is-- and maybe there's no good answer to this question, but when did this start? So it seems like, as you've implied, that we're in an era where it's very common for presidents of both parties to have a whole legislative agenda that they get elected and instead of-- I mean, some of them might pass, but a bunch of it, they just do. And you find lots of statutes and agencies who can do it.
And I think this came up at the argument, I think Justice Kavanaugh said, I get it. I used to work in the White House. Presidents need to get stuff done. Is something about it new, maybe in degree, in kind? Is the extent of executive unilateralism new? And if so, I don't know, there's probably not a magic moment.
ETHAN BUENO DE MESQUITA: Yeah. I mean my read of this is-- and I think presidential scholars disagree about this somewhat but that it's cyclical in American politics, that we have periods of imperious presidencies that then get pulled back in various ways. FDR, obviously, I mean, issued more executive orders than even President Trump.
We had a big period of retrenchment on this after the Nixon presidency and a whole slew of Congress decided to try and reassert itself. And we had a slew of post-Watergate reforms that were various attempts to rein in the executive from my reading largely failed. That is, there was a lot of legislation, a lot of new rules for the executive branch, a lot of new rules about congressional oversight that, briefly, some of them had an effect.
And then I think, kind of starting really even with the Reagan presidency, the energetic executive is one of the founding thoughts. And the energetic executive is energetic about finding ways to act because presidents want to get things done. So starting with Reagan and then I think growing over time, maybe with the W. Bush administration and certainly again with Trump and Biden, found new ways to once again reassert unilateral executive authority of a variety.
So I think it comes in cycles in American politics. And I think an interesting question is whether post-Trump or post Biden-Trump and with the change in the judiciary's stand, whether we're going to see Congress maybe rouse itself to think about these things again. Let's not get overly optimistic.
WILLIAM BAUDE: And this may just date about when I entered academia, but am I imagining that there could also be like a little bit of an inflection point in the middle of the Biden administration-- or sorry, in the middle of the Obama administration? The early period of the Biden administration is pursuing legislation, the Affordable Care Act, working on comprehensive immigration reform. And then you have congressional breakdown. And you have--
ETHAN BUENO DE MESQUITA: He's being shut out.
WILLIAM BAUDE: RIght.
ETHAN BUENO DE MESQUITA: That's right. A pen and a phone.
WILLIAM BAUDE: Right. I have a pen and a phone. And that's some of the early wave of universal injunctions seem to start in response to things that the Obama administration is doing that then continue to Trump that then continue to Biden that then continue back to Trump.
So, Sam, do you buy this story? And if so, does it-- I don't know. Does it suggest another-- does it make us question the decision? Could we say, look, equity should take account of the fact that Article II has changed, or if Article II hasn't changed, the practice of Article II has changed? Our presidents are doing a lot more than they used to and so equity has got to rise to the occasion?
SAMUEL L. BRAY: I do buy the story. And I think it's operating at both the level of more precedence but also more somnolent congresses. So that seems clearly to be the case, especially for a congressional majority of the same party as the president. So there's very little check right now.
So I think that's true. And in fact, my guess is that this might have been why it took so long for the Court to get rid of the universal injunction. So there was 10 years where the court was being besieged with interim order docket requests. And district courts were stopping whatever the president was doing. And justices appointed by both parties were saying, this is not the way it's supposed to work, but nothing was done.
And I think the reason, or at least one reason, was probably precisely the sense that, if the presidents are doing more than they're supposed to do, there needs to be a check. And if the check's not going to be Congress, the check needs to be the judiciary. So I buy it to that extent.
ETHAN BUENO DE MESQUITA: Can I ask you on that?
SAMUEL L. BRAY: Yeah.
ETHAN BUENO DE MESQUITA: Critics of the Court-- of this decision from the Court, I think, would say the reason that they did it now, as opposed to five years ago, is ideological sympathy with the Trump administration from the majority and ideological opposition to the Biden administration. And so they wanted the district courts-- they wanted, in particular, shopping for judges, and going to Texas, and getting the Biden administration stopped. They liked that.
And when it came to then overruling Trump decisions by shopping for judges, they didn't like it. You think there's anything to it?
SAMUEL L. BRAY: So I can't 100% rule that out. But it's also important here that the story is not the Court allowed universal injunctions under Obama and then, in 2017, got rid of them. They allowed them through the first Trump administration, through the Biden administration. And so maybe there's something to that.
I think there is also-- I think there are a couple other things going on. One is there might have been support for coming up with some kind of compromise, but it's really hard to come up with a compromise. And as the years go on and the lower courts can't come up with some kind of compromise to just have universal injunctions in the really bad cases, then, partly because of forum shopping and picking out your judge, it's very hard to-- you're going to be able to persuade the judge that this is one of the really bad cases. So the compromise solutions don't work. And when the compromise solutions don't work, then the Court may feel backed into it's got to be all or nothing. So maybe that's part of it. But who knows.
I also feel like the question is-- this sort of goes to your second comment about the Court reserving for itself the ability to go universal. The Supreme Court is a little differently situated here because when the Supreme Court decides a case, that's a precedent everywhere for the whole country. And when a lower Court decides a case, it's not a precedent for the whole country.
And so the Supreme Court, in a sense, doesn't need universal injunctions. It's the only Court that doesn't because it can have universal effect through its precedents controlling at least the lower courts in a way that the lower courts can't. So the lower courts need universal injunctions if they're going to go big. But the Supreme Court doesn't.
ETHAN BUENO DE MESQUITA: Was it clear before this case that that was true for these kind of interim injunctive decisions from the Supreme Court? My sense was the Supreme Court is also creating a novel kind of precedent here for these shadow docket interim decisions.
SAMUEL L. BRAY: Well, yes. That I think is still an unclear question is what the precedential effect of the shadow docket.
ETHAN BUENO DE MESQUITA: And so it's clear once the Supreme Court rules on the merits that it's universal. But now they've reserved--
SAMUEL L. BRAY: That's what I was trying to say.
ETHAN BUENO DE MESQUITA: They've reserved themselves the right also for the interim period until they've ruled on the merits to declare law for the country, or at least that's what Kavanaugh seems to--
SAMUEL L. BRAY: Exactly. But I don't think Kavanaugh is speaking for the majority there. And I don't think it's an accident that you don't have the other justices join that. There's a range of different [INAUDIBLE].
WILLIAM BAUDE: So just to make sure we unpack this, so one thing that's extra odd about this decision is it comes up, technically, in what some would call the Supreme Court's shadow docket, what we're now going to rebrand as the Supreme Court's interim relief docket, a more ideologically neutral term. It's also not in the shadows anymore.
And that's owing to the speed of these, that's where a lot of these decisions come from. The Supreme Court has said in various ways, well, these are technically not precedential like our regular merit decisions because they haven't been argued in the same way, although sometimes they are argued and written as if they are. Right.
And so now we have-- this is also an extra institutional piece of the story with more unilateral executive action, more Supreme Court rapid action. And then now maybe the Supreme Court is saying, or Justice Kavanaugh is saying, whenever the Supreme Court rules, that'll still be a de facto nationwide injunction. And so all that's really at stake in these rulings is how much power the district courts get in the two a half hours it takes before the Supreme Court gets it, or the two and a half months for the Supreme Court gets it, or in the cases the Supreme Court doesn't take. That's what Ethan's second question is coming to.
SAMUEL L. BRAY: I think there's a real divide in the Court on whether hurry up and decide by the Supreme Court is good or bad. So several of the justices have written opinions saying it's not good for us to have to hurry up and decide all these questions without proper briefing, and decisions from the lower courts, and trials. So this is more the Gorsuch Thomas line.
I take the Barrett majority opinion as being more in that vein. And then the Kavanaugh concurrence says, no, don't worry, we'll still hurry up and decide for the whole country very quickly. And that seems to me one of the big fault lines. Within the majority, it's not worked out in the case. And it's one of the things we're going to have to wait and see what happens.
ETHAN BUENO DE MESQUITA: I think one of the interesting things about the politics of the Court, we're going to-- I think we'll learn something as we see the coalitions come together. In this case, Justice Kagan says, I can't believe we're making these big decisions without briefings.
And yet you might also-- I could imagine a world in which Justice Kagan and Justice Kavanaugh end up on the same side of the Supreme Court have. I mean, I think there's an interesting kind of politics versus ideology-- I don't know-- thing that we're going to learn about as we see what coalitions emerge on this question of whether or not the Supreme Court can, in the interim, as opposed to at the final merits create universal rules for the country.
WILLIAM BAUDE: And that's, I mean, to get back to it, that's one of the issues in this case, too, is that here is the Court saying, in this case, answering only the abstract question of is there universal relief when, in some ways, the big question is, can the president change the rules for birthright citizenship for, contrary to a lot of people thought they were. And the dissenters were willing to say, no, we should answer that question right now. We know enough to know this whole thing is unlawful so why aren't we answering that question? That's even more sort of hurry up and decide.
ETHAN BUENO DE MESQUITA: I mean, and I think you see all the strategy. Right? I mean, the government, because they know they're going to lose on that, very deliberately did not ask the Supreme Court. They did not, in fact, appeal the interim order for the actual case at hand. They only brought this question of whether or not we can have universal injunctions and so because I think they know on the merits they're going to lose but they're going to get they're going to get a long time of getting to enforce this, at least in a few places, which I think speaks both to this-- I mean, to this question about should the Supreme Court step in and also, I think, raises other interesting questions about this.
We used to have-- well, we had this problem in shopping at the level of people going to seek a judge who didn't like what the government was doing to get it over. And now we're going to have a world in which different jurisdictions have, as we've always had, of course, in a variety of ways, but different jurisdictions have different understandings of the legality of the things the executive is doing. And we might see, for example, sort of enforcement shopping by the executive where we don't have birthright citizenship, at least until the Supreme Court rules, in Texas, but we do in California, because the district judges are going to rule differently in those places.
SAMUEL L. BRAY: So I expect, on the particular issue of birthright citizenship, that the executive order is never going to go into effect. And it's going to be stopped through multiple different devices. But I do think there's a key difference between the hurry up and decide on the scope of the injunctions and the hurry up and decide on birthright citizenship because even though I'm a skeptic of universal injunctions, I don't think they're good, there's not been, before Trump v. Casa, a clear Supreme Court decision rejecting them.
On birthright citizenship, there's the practice of all three branches for a century. So it's not hurry up and decide. It's like, hurry up and stand pat with what we've been doing for 100 years before an executive order tried to change it, which is a very different kind of argument against accelerated judicial decision.
WILLIAM BAUDE: And you can imagine a world where one of the failed compromises was to say, well, can't have universal injunctions unless the executive action violates clearly established law. And then it makes sense to have it. Then, as all lawyers know, what law is clearly established quickly becomes unclear, because everybody will have some argument that this is not quite the same as what was clearly established. And so you end up back where we started.
SAMUEL L. BRAY: And that world might have worked if you didn't have the heightened judicial polarization and the easy forum shopping. Once you combine those two, you can find the judge who thinks it's a violation of clearly established law pretty easily.
ETHAN BUENO DE MESQUITA: I guess on this, again, I'm not a lawyer so I'm going to ask those of you who are to help me understand this. I think there is a question for the non-lawyer about how much is really changing here. And you alluded to this slightly. So the decision does leave open a bunch of paths for the same outcome at the district court level through different mechanisms.
So they talk about class actions. They talk about state sovereignty claims, allude to other kinds of mechanisms where you might be able to get universal relief without a universal injunction, I guess. And I guess my reading of the Thomas and Alito concurrence-- it's not joined by anybody else-- was they were kind of at pains to say, yes, that's true, but we're not going to let you, and the fact that other-- or we want you to take really seriously those big restrictions on those things. Nobody else joined that. Are we just headed towards they've said you can't do these universal injunctions but we're headed towards there's all sorts of other ways for the lower courts to offer universal relief and we're just going to land there?
SAMUEL L. BRAY: So I think that's unclear because let me distinguish two different alternative avenues to get to broad relief. And I'm going to have to use some lawyer speak but hopefully not any that will exceed the legal limit for driving on a podcast.
ETHAN BUENO DE MESQUITA: I'll tell you if I don't know any of the words.
SAMUEL L. BRAY: OK. So one is the Administrative Procedure Act says that you can challenge government regulations from agencies. And there's some language about courts being able to set aside those rules. Now the question that's a big question about whether that allows them to give universal relief. That's hotly debated.
The Court couldn't touch that in this case because it would split the majority and then you wouldn't have a majority. But that's different because if the APA does allow that-- and I'm skeptical. But if the APA, the Administrative Procedure Act, that statute does allow courts to give universal relief against agency rules, then you at least have Congress's validation of it. And so there the Court would have to be going against Congress. And that's not something courts like to do as much.
The other alternative avenue is class actions. So you get a whole bunch of people all together, sue as a class. This is happening in challenges to the birthright citizenship order. And I think the Court saw those as just different because they've got a much better historical pedigree. And here's a key thing. You get the whole class together. And the class sues and the class wins or the class loses but the same rule applies to everybody.
And with universal injunctions, it was different because you could have six people sue, all of them lose, and then one person sues and wins, and then that's the case that controls the federal government everywhere. So there's this asymmetry that the government has to run the table. And so that's going to be gone.
So I think you're still going to see broad relief. What happens with the Administrative Procedure Act is a big question. You're still going to see broad relief through class actions, but it's not going to be in every case. It's going to be fit within the legal rules better. And it's going to have this proper scope that everybody wins or loses together, which is the way it's supposed to work.
WILLIAM BAUDE: So I feel this happens a lot in the law, and I never quite how to think about it, where people try to do a new thing in a new way, and then the Supreme Court comes in and says, oh, you can't do new things in new ways. You can only do new things in old ways. So you have to do the new thing in the old way.
And then there's always a little bit of question of, well, what is at stake in telling people you have to do this new thing in an old way rather than a new thing in a new way? And maybe-- Sam gestured at legitimacy. Maybe it's just that it sounds much better and more legitimate when you can say, oh, it's a new thing in an old way.
So in a way, it's old, or maybe there are actual concrete stakes, because once you do the new thing in the old way, a lot of old precedents we established about the old way we can use here, too. And those will sometimes limit it and sometimes not. But we have a better established framework for when the new thing is OK and when it's not. And I feel like we're in which of those worlds are we going to be in.
There are cases about class actions. It's a whole subject of civil procedure. And so maybe now the main thing we learned is, well, we get to take all those old cases and old fights we've been having, which at least gave us some framework for when things are OK and not, and we get to bring them over, or maybe the framework won't really apply so really you'll just do the same thing but it'll have a new, more legitimate name and so it'll be better.
SAMUEL L. BRAY: I mean, I think the reasons for this in general are two. You mentioned legitimacy. And you can think of that just as rhetoric. How can judges hide the ball on what they're doing? But I think a deep anxiety for judges is, how is what I'm doing different than what Congress does? And Congress can just wake up and say, let's have a new rule. Let's have a new statute. Let's do something new today.
But judges, part of what makes them judges is that they're deciding based on the law you already have. And sure, they do new things. They come up with new decisions. They extend them. But they do it by saying, like you said, well, it's the old law that made me do it. So I think that's part of it. And then I also think it's just a way of managing the complexity of the law. So the decision costs are high. You keep your number of boxes or categories smaller. And you fit new stuff in them rather than constantly having new ones. And I think that helps individual judges and also the coordinated activity of all the judges together.
ETHAN BUENO DE MESQUITA: I would say-- OK. So lest I lose my membership in the Political Economy Society, I'm sure it must be true that judges are thinking about these kind of inside the law issues. They're socialized and professionalized to think that way.
I do think it is hard to look at this case, and the way the decision is crafted, the fact that such a long decision was written at all, and the way argument went, and not think that a significant part of what's going on is that the Court is negotiating its relationship with the executive branch, that this is really a balance of powers. They're thinking very hard about the balance of powers, not just what courts do, but the relationship with the executive branch, and maybe this administration in particular. And so I think it's hard-- I find it hard.
WILLIAM BAUDE: And translate it. So what are they doing? What are they really doing on this model?
ETHAN BUENO DE MESQUITA: So OK. A few things. So one is I think there's an interesting question about whether or not this decision, on the one hand, you've taken some power away from the courts. You've said that lower courts can't make these universal decisions. And so that looks like maybe a weakening of the scope of judicial power.
On the other hand, you've also said the Supreme can. The Supreme Court has asserted this vertical control over the lower courts and can make these universal decisions. So maybe that looks like consolidating power in the Supreme Court. You give the Trump administration at least a temporary win on an issue where I think everybody thinks they're going to lose on the merits, but you give them a temporary win. You consolidate some power in the Supreme Court. And during the course of doing so, they extracted some, of course, nonbinding, but they extracted some promises from the executive branch, or at least from this administration.
They had this whole conversation about, if you keep losing at the district courts on this issue, are you never going to come ask us so we never get to say-- he says, oh, no, we're going to come ask. And they also assert, essentially, they assert and demand a concession that if we make these kinds of rulings, you'll listen to us. And so it looks to me like they're doing a lot of negotiating the role of the judiciary relative to an increasingly powerful executive branch.
And it looks to me like their strategy is become a more unitary judicial branch as well. Take a lot of the decision making authority and power in the judiciary and make sure it resides in the Supreme Court, where they can act strategically and deliberately as opposed to scattered around the district courts where God knows what's going to happen, and then saying to the executive branch, look, we can do business together but there are some things that still belong to us and you're going to say out loud that they still belong to us. It all seems to me very tied up with thinking about the balance of powers.
WILLIAM BAUDE: And this, I think in this context also, the fact that there have been so many-- such a wave of universal injunctions against so many things the Trump administration has done and that the Trump administration has a better record in the Supreme Court are part of the story. So you're saying to the administration, look, you're losing in all these courts. You're threatening to impeach judges and defy them. And so we'll make you a deal. We'll rein them in, but you got to listen to us. So we'll tell you-- some of these you've really got to listen to. And when we say it, you've really got to do it. But otherwise we'll give you--
ETHAN BUENO DE MESQUITA: And this wasn't the only interim decision-- the Trump administration went on a lot of interim decisions this go around. The Biden administration also had a reasonably bad record I guess the district courts and a good record at the Supreme Court on these things.
SAMUEL L. BRAY: Which is not a surprise, given that the president gets to decide which cases to take to the Supreme Court in this accelerated posture. So I agree with that. I think there's a delicate dance between the executive branch and the judiciary. And for the judiciary, it doesn't have the power to enforce its orders. So it relies on public acceptance and non-flagrant resistance by the executive branch.
And so you can easily see this case like the part of the why now, part of the why just this part of it and not the birthright citizenship, the Supreme Court is giving this administration some wins and some losses. The wins keep it on board with adhering to Supreme Court decisions. The losses provide backstop for the law in the cases where the government loses.
And I think this is attractive-- within that story, this case is attractive for the Court in two ways. One is it's a win for the government, a big win for the government, and for presidents generally, because, I mean, Biden wanted this too and Obama wanted it. It's a win for the president that aligns with the principles of the majority of the Supreme Court. So they don't have to change their principles to be able to decide the case this way. And then second, it slows down the pace of things coming up from the lower courts.
So Professor Jack Goldsmith has referred to the temporizing move by the Supreme Court to slow things down and to wait. And this is in line with that. Universal injunctions with emergency appeals to the Supreme Court is the opposite of temporizing. And so this, I think, helps with the temporizing, but only if the Kavanaugh concurrence is not where the Court lands, because if it is, then it's like, hurry up and decide now.
WILLIAM BAUDE: So on this prediction, does that mean there will be things that the administration loses, because we've speculated that maybe they'll ultimately lose on the merits of birthright citizenship. There'll be other things and that there's some things that are going to be in the lawsuit maybe that haven't come yet or maybe that's the credit the court's buying now. That's sort of the idea?
ETHAN BUENO DE MESQUITA: Yeah. Exactly. I mean, so yeah, I think, the Supreme Court needs to be able to-- yes. The Supreme Court needs to be in a position to rule that plainly unconstitutional things are plainly unconstitutional and not expect that to result in the executive branch simply ignoring the Supreme Court. It's a catastrophe.
SAMUEL L. BRAY: Due process before you can be deported from the US, two terms is all you can be elected to, can't remove the Federal Reserve chair, things like that.
WILLIAM BAUDE: So I guess-- so many people have criticized this decision and the Court generally for not doing enough to stand up to the Trump administration. So I guess on this strategic picture, though, one question would be, suppose you wanted the Court to do as much as possible to stop the Trump administration. Would you have wanted it to do more than it did here? Could the Court have gotten away with being more aggressive, or do we think they're already actually pushing the margin as far as they reasonably could?
ETHAN BUENO DE MESQUITA: I think it's a really interesting question. I mean, I think there is no reason, I think, to expect that there's a bank account of credit that the Supreme Court accumulates with President Trump such that, if he wins today and loses tomorrow, he's like, well, 50-- that doesn't strike me as either like a sound analysis of his character or a sound game theoretic analysis of the politics of these things.
So I don't know that the Court is right to think that, by making some concessions here, a year from now, they're going to have won some credibility with the administration that lets them do things they otherwise could not have done, which isn't to say that I think the Trump administration is, in fact, ready to outright defy plain spoken constitutional decisions from the Supreme Court. I don't know that they're ready. I just I am a little skeptical of the we're engaged in a kind of dynamic bank account where we're getting a balance of zero with the administration by giving them some wins now for some losses later. I don't know that that analysis is right on the politics.
WILLIAM BAUDE: So one mechanism that could happen, which, again, may be totally wrong and just speculative, would be there are also lots of different people in the Trump administration. So you could imagine it's the Solicitor General of the United States who makes the line decisions what to appeal and what not to, and has to show up at Court and make these concessions.
But the extent to which the Solicitor General of the United States has sway in any given administration is contingent. Some presidents would say, look, if the Solicitor General of the United States has promised this to the Supreme Court, I would never want to go against that. And others might say, I'm happy to fire him tomorrow if that's helpful to the political agenda. So you can imagine that--
ETHAN BUENO DE MESQUITA: I'm going to go with President Trump being in the latter camp.
WILLIAM BAUDE: Seems like a sound guess to me. Seems plausible.
ETHAN BUENO DE MESQUITA: But I do think also the Supreme Court is-- they are not just negotiating their relationship with the Trump administration. I think they are making decisions about the long run. They see their role as making decisions about the long run.
WILLIAM BAUDE: You could imagine cases like this mean that the bank account is the political capital of the Solicitor General's office, that now the solicitor general office is in a meeting and says, you should let us appeal these because we have a pretty good chance, the Court often rules for us, that they get listened to more often. Now maybe after one loss, they never get listened to again. But maybe they get more standing. I don't know. Is that too imaginative?
ETHAN BUENO DE MESQUITA: I think the negotiations inside the administration I think are pretty opaque. It's hard to know, which is to say, I think, I would be shocked to learn that the Court is not thinking hard about the politics and have their own theories about the administration and about future administrations. I don't think it is easy to see into all of that balance of considerations. I think the politics are really quite complicated.
And also, like when we start talking about legitimacy in the Supreme Court rests on the executive following them but also something about public opinion and their prestige, and what would be the cost to the president defying the Supreme Court, they're not just one audience. They're not just inside the administration there's not just one audience. But the public's view of the Court and the public's understanding of the court's role in the balance of powers is, I think, also an important consideration here.
SAMUEL L. BRAY: I am a little surprised that the Court did not signal that the executive order on birthright citizenship was unconstitutional because it did seem like connecting the two, giving the Court-- giving the president the big win on universal injunctions and combining it, bundling it with the loss on the birthright citizenship order was teed up so they could have done that. But that goes to those opaque--
ETHAN BUENO DE MESQUITA: How normative would that have been? If the decision had gone that way, had at least sort of nodded towards, and preparing the administration, and signaling to the public, look, we're not really going to allow this, but it's not time yet. We have to wait for the decision on the merits-- is that the thing that would be viewed by legal professionals and the like as the Supreme Court being out over its skis?
SAMUEL L. BRAY: I mean, there'd be debate about it. On the one hand, you could say, well, that's not necessary to decide this case. That's not fully briefed or whatever. So you could have arguments that way.
On the other hand, the Court has a number of different ways it could do this. It could say, well, we recognize this is against the backdrop of a longstanding practice of birthright citizenship that all three branches have agreed to, but the merits of that are not precisely presented to us in this case. And so they could basically indicate that they thought it was settled law. And an executive order can't override a statute. It can't override a Supreme Court decision. So as a matter of legal craft, it would be a subject of controversy. But it is within the zone of plausibility.
WILLIAM BAUDE: I think if they wanted to do it in bright red letters that anybody could understand, that would almost certainly be counternormative in terms of legal craft. But there's a whole range of delicate ways, delicate things they could do that they didn't.
ETHAN BUENO DE MESQUITA: Can I ask you one other interpretive question about how to think about that?
SAMUEL L. BRAY: Yeah.
WILLIAM BAUDE: You indicated you think probably nobody else, at least the majority, does not agree with Kavanaugh on the Supreme Court having or at least the Supreme Court should exercise this authority.
SAMUEL L. BRAY: I mean, the chief might agree, but I think other people would disagree, Gorsuch and Thomas.
ETHAN BUENO DE MESQUITA: A thing they could have done, I guess, I think is made this decision not about the Judiciary Act but about Article III.
SAMUEL L. BRAY: Yes.
ETHAN BUENO DE MESQUITA: Right? And they didn't.
SAMUEL L. BRAY: They didn't.
ETHAN BUENO DE MESQUITA: Had they made it about Article III, it would been clear to Kavanaugh it was wrong. Yeah?
SAMUEL L. BRAY: Well, the reason they-- so Article III is the part of the Constitution that sets out the powers of the judiciary. And they didn't ground it in the Constitution. And the reason they didn't is, if they had done that, it would be harder to put the Administrative Procedure Act question to the side because the Administrative Procedure Act, Congress saying sometimes you can set aside agency rules, that wouldn't be able to override the Constitution.
ETHAN BUENO DE MESQUITA: So they would have both said the Supreme Court can't reserve itself because it's an Article III power and so it's Article III Court and also they would have said Congress also can't. And I guess that also makes trouble for past precedent.
SAMUEL L. BRAY: It makes trouble for past precedent. It also means it takes away from Congress an ability to rein in the executive if Congress wakes up from its torpor. And it also would split the majority because Kavanaugh's already indicated he wouldn't go for that. The Chief Justice probably wouldn't go for that. It'd be very hard to get to five votes in this case with an Article III holding.
ETHAN BUENO DE MESQUITA: And so this does leave open the possibility that Congress could say to the courts, we want you, at least in some domain, we want you to get involved in providing universal relief.
SAMUEL L. BRAY: That's right. Now, one of the things that's interesting is even though the Court couldn't make the constitutional argument from Article III, Justice Jackson's dissent, which argued it's the role of courts to declare what the law is for everybody, that opened up an opportunity for the majority opinion to counter that and say, that's not the role of judges.
The role of judges is to decide one case at a time. So all the constitutional kinds of arguments got to be made, but they got to be made as a rebuttal to the dissent. So they're still in there, but they're not presented as a constitutional basis for the decision.
WILLIAM BAUDE: So, Ethan, can I ask you one last question as we bring this to a close? If you were giving strategic advice to the Court, do you have any? I mean, if we think we think we should analyze their part engaged in a strategic game, and we talked about what they might be doing and some of the flaws in it, yeah--
ETHAN BUENO DE MESQUITA: What's their goal?
WILLIAM BAUDE: Well, I guess, yeah, maybe that's part of the question. I suppose their goal is to follow the law as they see it as much as possible, preserve as much of their power as possible, but not at the expense of the institution and all these things.
ETHAN BUENO DE MESQUITA: Yeah. I mean, I think, OK, so I do think, from a purely politics perspective, it has probably been damaging. I think universal injunctions have been damaging to the judicial branch. I think that each time an administration is in office and can't get anything done because of forum shopping, it hurts the judiciary with one or the other side, and, in fact, maybe with both sides, because you then see the judge making this rule and nobody likes it. I don't think anybody-- I mean, everybody likes to win on the policy in the moment, but it's just the-- I don't think that's a win.
And so I do think probably the Supreme Court is making a good decision for the judicial branch by reining that in and pulling the authority up to themselves. Whether it would be a good decision to go further and say, we're not going to be in that business also, that seems more questionable to me because I do think the executive branch enforcing for a long time before you actually get a decision on the merits from the Supreme Court, sort of plainly illegal or unconstitutional executive orders is also not good for the judiciary, because I think the other challenge the judiciary faces is the frustration of the American people with what we have learned over the last several years very acutely, I think, how slow the judicial process is and, in fact, the inability of the judiciary in anything like the time scale of politics to make decisions on absolutely critical constitutional issues for the Republic.
So I think the judiciary faces this it's not good to have one judge in one forum/shop/place to be able to shut down the presidency. It is also not good that the judiciary seems chronically unable to make decisions on a time scale that is relevant for Democratic processes. And so now they're going to have to balance those two things.
I do think there's an interesting question about are there ways to help the judiciary out on that front. Could Congress, as we were just talking about, could Congress innovate in some ways to allow the judiciary to act on more of these things more quickly without it being one district judge whose forum shopped, and also without it always having to be the Supreme Court who just can't hear that many cases?
Could we do something that expedited that in sort of a collaboration between the judiciary and the Congress? That's hard in current American politics. But I think, first order, it's probably good for the judiciary not to have the universal injunctions in the district court. And it is bad for the judiciary that they are so slow to decide the most important issues or many of the most important issues in our contemporary politics.
WILLIAM BAUDE: Thank you both for the conversation. The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression, and driven by rigorous interdisciplinary research, the project brings together leading scholars to explore these questions with depth and nuance.