Question 1): Michigan Republicans cheered the U.S. Supreme Court’s decision on June 27 in a case involving President Donald Trump’s order seeking to restrict birthright citizenship that limited lower courts’ ability to issue nationwide injunctions overall.
The 6-3 decision held that lower courts must decide whether a more narrowly tailored decision, applying to the specific plaintiffs filing a case or to the states in which cases are filed, is more appropriate, given federal rules regarding the courts’ jurisdiction.
Ultimately, the decision could have wide-ranging impact on lower courts’ ability to restrict administrations of either party nationwide through what are known as ‘universal injunctions’ while a case is being litigated.
Posting on social media platform X, U.S. Rep. Bill Huizenga (R-Holland Township) said, “Today’s ruling by the Supreme Court is a win for our Constitution, separation of powers, and our system of government as a whole. This decision delivers a clear knockout to the dramatic overuse of national injunctions by some district court judges.”
Meanwhile, U.S. Rep. Lisa McClain (R-Bruce Township) said on X that, “Today, the Supreme Court ruled to rein in the rogue judges who have been issuing nationwide injunctions in an attempt to stall President Trump and the American people’s agenda.” She called it a “Huge win for our country!!”
But is it, really? And is this the final word? After all, it may look like a ‘Big Win’ for the Republicans right now, but what goes around comes around — there will eventually be a Democratic president who can take advantage of the Supremes’ edict in a way Republican’s won’t like.
Answer 1): Former state Rep. Chuck Moss (R-Birmingham), who was chairman of the state House Appropriations Committee in 2011-12, has some observations that TBR readers may or may not agree with. Moss is an attorney who has also thrived as a radio-TV talk show host and as a columnist for The Detroit News and other newspapers, particularly in Southeast Michigan. Here’s how he looks at the SCOTUS decision:
“Before last month’s high court decision, we had seen a torrent of court orders by local federal district judges shutting down the current president, Donald Trump, and, before him, Joe Biden and all his predecessors extending back to the 19th century. For instance, a month ago a federal Judge in San Francisco halted Trump’s executive order directing agencies to shut down offices and lay off thousands..
“Before that, it was a judge in Maryland, halting Trump’s DEI Executive orders on federal departments. And, before that, a judge in Rhode Island, and one in Massachusetts, and Seattle, and another one in California, and the DC federal district bench. Welcome to the Judicial Resistance, or Judges’ Insurrection! Any one of the 677 federal district judges can have a veto over the actions of a president, until an appeal goes through the system.
“It’s guerrilla warfare, in courtrooms instead of jungles. Go look for a sympathetic judge. File a complaint with this friendly jurist, who then issues an order to the Executive. The President appeals the case, it goes up, and maybe the president wins. Then the guerillas move on to another friendly judge somewhere else, and the whole thing starts again.
“So where do the federal district courts all get the power to veto the Executive? Nowhere!
“Judicial Supremacy is nowhere in the Constitution. It’s totally made up by the judges themselves! Marbury v Madison (1803), deftly invented the right of Judicial Review — that the federal Courts could decide what was and wasn’t allowed. The courts became a check and balance on the President and Congress. But who checks and balances the Courts?
“Nobody. Just another judge. That’s not democracy, nor is it a constitutionally limited republic. Neither is 677 Federal judges, each having a veto over the popularly elected Executive. The Rule of Law isn’t the Rule of Lawyers. Or Judges.
“So what do we do? Relying on the judges to discipline themselves hasn’t worked.
“The weakness of the Judicial Lords? To actually get anything done, the Judges rely on everyone else obeying them. Judicial Supremacy rests on Judicial Deference. What if the Executive and Congress just stop deferring?
— Judicial power depends on deference by the Executive and Legislative branches. If the courts become recognized as simply one party’s political hacks, why listen to or obey them?
— The Courts’ powers aren’t Constitutional or codified, they’re just taken by the Courts themselves, and acquiesced to by everyone.
— The spectacle of lots of little federal Priest-Kings grabbing power as “resistance” to the elected President destroys the legitimacy of Judicial Review.
“If Judicial Review dies, the judges have only themselves to blame.”
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Locally, look what has happened in the United States District Court to Trump supporters who had tried to overturn the 2020 presidential election results.
Federal judge Linda Parker in Detroit issued a sanction award against several attorneys, including Stefanie Lambert, for their roles in supporting Trump’s position. Parker had been an appointee of Barack Obama. The sanction award was $180,000 and Parker also took the unusual step of reporting Lambert’s conduct to the Michigan Attorney Grievance Commission, who eventually filed a formal complaint against Ms. Lambert. Ms. Lambert appealed the sanction order of Judge Parker.
The United States Sixth Circuit Court of Appeals in Cincinnati UNANIMOUSLY reversed the sanction order against Lambert, finding she played only a minor role in the federal action and merited no sanction. The Michigan Attorney Grievance Commission dropped their disciplinary proceeding against Ms. lambert based on the appellate reversal.
Several weeks after attorney Lambert was cleared, Michigan Attorney General Dana Nessel – a Democrat – had a court issue a criminal warrant against Ms. Lambert based on unrelated conduct. Those charges remain pending despite Ms. Lambert’s vehement denials and vigorous criminal defense.
Critics have observed that draconian actions taken against Ms. Lambert – a former assistant prosecutor herself – have been motivated by political partisanship rather than any legal merit to the allegations against her.
Nice article, Bill, and a nice appearance on OTR. And as usual, my “renowned” computer skills have not improved so when I quote a story, the quotes will be in all caps. I am not shouting (which I’ve been told some people consider using all caps to be, though why folks don’t consider someone hitting all caps by mistake is beyond me).
As odd as I find it, I have to say Chuck Moss is right, judicial review is a doctrine made up by the Supreme Court. And he is not the only one saying this. In the July 5th edition of UnHerd, former US diplomat David Rundell notes, “EVERY LAW SCHOOL PROFESSOR WILL TELL YOU THE COURTS HAVE THE AUTHORITY TO DECLARE LAWS UNCONSTITUTIONAL. EVERY ONE OF THEM ALSO KNOWS THAT THIS AUTHORITY IS NOT FOUND ANYWHERE IN THE CONSTITUTION. IT WAS THE SELF-AGGRANDIZING BRAINCHILD OF CHIEF JUSTICE JOHN MARSHALL WHO PROMULGATED IT IN THE 1803 CASE OF MARBURY V. MADISON. IT HAS BEEN ACCEPTED BECAUSE IT IS GENERALLY REGARDED AS USEFUL. And here Mr. Moss is right again. “JUDICIAL POWER DEPENDS ON DEFERENCE BY THE EXECUTIVE AND LEGISLATIVE BRANCHES. IF THE COURTS BECOME RECOGNIZED AS SIMPLY ONE PARTY’S POLITICAL HACKS, WHY LISTEN TO OR OBEY THEM?”
As for universal injunctions, we’ve been here before. In 2022 in a speech at Northwestern University, Mr. Rundell noted that Justice Kagan, “STATED: ‘IT JUST CAN’T BE RIGHT THAT ONE DISTRICT JUDGE CAN STOP A NATIONAL POLICY IN ITS TRACKS.’ He concludes, “YET LAST WEEK SHE VOTED AGAINST ENDING NATIONWIDE INJUNCTIONS. REGARDLESS OF THE LEGAL REASONING BEHIND HER DECISION, IT APPEARED TO MANY AS POLITICALLY MOTIVATED HYPOCRISY.” You think?
Now I am sure that there are some folks who think that the Court’s decision in the CASA case has put an end to universal injunctions, they are mistaken. On an earlier case, for Federal Court law clerk Margot Cleveland, in a June 30th column in The Federalist, writes concerning the Supreme Court’s decision in Department of State v. AIDS Vaccine Advocacy Coalition, “IN THAT CASE, SEVERAL AMERICAN BUSINESSES AND NONPROFITS WHICH RECEIVED GRANTS FROM THE STATE DEPARTMENT AND USAID SUED THE TRUMP ADMINISTRATION, CLAIMING THE TEMPORARY PAUSE OF FUNDING WAS UNLAWFUL. A DISTRICT COURT JUDGE ENTERED AN INJUNCTION ORDERING THE TRUMP ADMINISTRATION TO HALT ITS PAUSE. THEN, WHEN PAYMENTS DIDN’T RESTART FAST ENOUGH FOR THE JUDGE’S LIKING, HE ORDERED THE GOVERNMENT TO PAY OUT APPROXIMATELY $2 BILLION IN TAXPAYER FUNDS WITHIN 36 HOURS.
THE TRUMP ADMINISTRATION SOUGHT A STAY FROM THE SUPREME COURT, ARGUING THE LOWER COURT LACKED JURISDICTION TO ORDER THE GOVERNMENT TO PAY GRANTS. CHIEF JUSTICE ROBERTS ENTERED AN ADMINISTRATIVE STAY, BUT THEN AFTER THE 36-HOUR DEADLINE TO PAY THE GRANTS EXPIRED, RATHER THAN MAKE CLEAR THERE WAS NO JURISDICTION, THE COURT NOTED THAT SINCE THE DEADLINE HAD PASSED, THERE WAS NO NEED TO ADDRESS THE CHALLENGED ORDER. THE SUPREME COURT, HOWEVER, ALSO TOLD THE LOWER COURT “TO CLARIFY WHAT OBLIGATIONS THE GOVERNMENT MUST FULFILL TO ENSURE COMPLIANCE WITH THE TEMPORARY RESTRAINING ORDER, WITH DUE REGARD FOR THE FEASIBILITY OF ANY COMPLIANCE TIMELINES” – AN IMPLICIT REBUKE OF ITS EARLIER INJUNCTION.
JUSTICE SAMUEL ALITO, JOINED BY THREE OTHER JUSTICES, DISSENTED FROM THIS PUNT, WRITING:
“DOES A SINGLE DISTRICT-COURT JUDGE WHO LIKELY LACKS JURISDICTION HAVE THE UNCHECKED POWER TO COMPEL THE GOVERNMENT OF THE UNITED STATES TO PAY OUT (AND PROBABLY LOSE FOREVER) 2 BILLION TAXPAYER DOLLARS? THE ANSWER TO THAT QUESTION SHOULD BE AN EMPHATIC ‘NO,’ BUT A MAJORITY OF THIS COURT APPARENTLY THINKS OTHERWISE. I AM STUNNED.”
A cynic might call that judge’s actions one of an imperial judiciary. And as for CASA itself, once again we look to Justice Alito’s comments in the CASA case to make the point. Mr. Rundell again notes, “EVEN MORE SIGNIFICANTLY, WHILE THE SUPREME COURT DECISION LIMITED THE USE OF NATIONWIDE INJUNCTIONS, IT STILL ALLOWS “CLASS CERTIFICATION” THROUGH WHICH COURTS CAN ISSUE INJUNCTIONS AFFECTING A VERY BROAD GROUP OF PEOPLE. AS JUSTICE SAMUEL ALITO NOTED, THIS IS “A POTENTIALLY SIGNIFICANT LOOPHOLE” IN THE DECISION. IS THERE ANY REASON TO DOUBT THAT JUDGES WHO WERE LAX IN THE USE OF NATIONWIDE INJUNCTIONS WILL BE ANY STRICTER IN THEIR USE OF CLASS CERTIFICATION? THE FAILED PLAINTIFFS IN LAST WEEK’S DECISION HAVE ALREADY SOUGHT A NEW INJUNCTION UNDER THIS PROVISION OF THE LAW.”
As if on cue, Kyle Cheney and Hassan Ali Kanu report in the July 3rd edition of Politico, “IF THE SUPREME COURT’S NEAR-BAN ON NATIONWIDE INJUNCTIONS WAS THE EARTH-SHATTERING VICTORY PRESIDENT DONALD TRUMP CLAIMED, NO ONE SEEMS TO HAVE TOLD HIS COURTROOM OPPONENTS.
WHILE THE ABSENCE OF THAT TOOL IS CLEARLY A SEA CHANGE FOR THE JUDICIARY, EARLY RESULTS INDICATE THAT JUDGES SEE OTHER PATHS TO IMPOSE SWEEPING RESTRICTIONS ON GOVERNMENT ACTIONS THEY DEEM UNLAWFUL. AND THOSE OPTIONS REMAIN VIABLE IN MANY MAJOR PENDING LAWSUITS AGAINST THE ADMINISTRATION.
SINCE THE HIGH COURT’S RULING LAST FRIDAY, U.S. DISTRICT JUDGE RANDOLPH MOSS ISSUED AN EXTRAORDINARY REJECTION OF THE PRESIDENT’S EFFORT TO BAN ASYLUM FOR MOST SOUTHERN BORDER-CROSSERS, A RULING WITH NATIONWIDE EFFECT.
MOSS, AN OBAMA APPOINTEE, EMPHASIZED THAT HIS DECISION WAS NOT ONE OF THE NOW-VERBOTEN INJUNCTIONS. INSTEAD, IT RELIED ON TWO ALTERNATIVE ROUTES THE SUPREME COURT ACKNOWLEDGED REMAINED AVAILABLE FOR THOSE CHALLENGING TRUMP’S POLICIES: CLASS ACTIONS, WHICH ALLOW LARGE GROUPS TO BAND TOGETHER AND SUE OVER A COMMON PROBLEM, AND THE ADMINISTRATIVE PROCEDURE ACT, A FEDERAL LAW THAT PERMITS COURTS TO “SET ASIDE” FEDERAL AGENCY ACTIONS THAT VIOLATE THE LAW, INCLUDING RULES, REGULATIONS AND MEMOS LAYING OUT NEW PROCEDURES.
THE RULING BY MOSS DREW INTENSE OUTRAGE FROM THE TRUMP ADMINISTRATION, WHICH ACCUSED THE JUDGE OF GOING “ROGUE” AND VIOLATING THE SUPREME COURT’S INTENTIONS.
HOURS LATER, U.S. DISTRICT JUDGE JOHN BATES, A GEORGE W. BUSH APPOINTEE, ORDERED FEDERAL HEALTH OFFICIALS TO RESTORE HUNDREDS OF WEB PAGES CONTAINING GENDER-RELATED DATA THAT OFFICIALS TOOK DOWN PURSUANT TO A TRUMP EXECUTIVE ORDER CRACKING DOWN ON “GENDER IDEOLOGY.” HE DESCRIBED THE MOVE AS AN EXAMPLE OF FEDERAL OFFICIALS “ACTING FIRST AND THINKING LATER.”
DESPITE THE NATIONWIDE IMPLICATIONS OF HIS RULING, BATES EMPHASIZED THAT THE APA ALLOWS COURTS TO EFFECTIVELY UNDO UNJUSTIFIED AGENCY ACTION, ADDING THAT EVEN THE JUSTICE DEPARTMENT DID “NOT ARGUE THAT MORE TAILORED RELIEF IS EVEN POSSIBLE HERE, LET ALONE APPROPRIATE.” THE JUDGE ALSO LEFT OPEN THE POSSIBILITY THAT OFFICIALS COULD GO BACK TO THE DRAWING BOARD AND FIND A LAWFUL WAY TO RESTRICT CONTENT RELATED TO SO-CALLED “GENDER IDEOLOGY.”
AND IN MASSACHUSETTS, REAGAN-APPOINTED U.S. DISTRICT JUDGE WILLIAM YOUNG WAS CAREFUL TO EMPHASIZE THAT HIS EXPANSIVE RULING RESTORING HEALTH RESEARCH GRANTS – CUT FOLLOWING THE SAME EXECUTIVE ORDER CITED BY BATES – WAS NONETHELESS TAILORED ONLY TO PROVIDE RELIEF TO THE ORGANIZATIONS THAT SUED. LIKE BATES, YOUNG’S RULING RELIED ON THE APA.
“PUBLIC OFFICIALS, IN THEIR HASTE TO APPEASE THE EXECUTIVE, SIMPLY MOVED TOO FAST AND BROKE THINGS,” YOUNG WROTE.
IN SHORT, THE SUPREME COURT’S RULING ON NATIONWIDE INJUNCTIONS MAY BE THE TECTONIC SHIFT THAT WASN’T. DESPITE THE EXTRAORDINARY POTENTIAL TO RESHAPE THE JUDICIARY, ITS IMMEDIATE IMPACT – PARTICULARLY IN THE INNUMERABLE CHALLENGES TO TRUMP’S EFFORT TO SINGLE-HANDEDLY SLASH AND RESHAPE THE FEDERAL GOVERNMENT – MAY BE LIMITED.
Again I say, you think?
Leanne in her response notes well the use of lawfare against one’s political opponents. Stefanie Lambert was hit by a US District Court judge, then the state’s Attorney General. Even though the judge’s actions were undone by the 6th Circuit, I am pretty sure that Ms Lambert’s bank account is substantially less solvent than it was prior to her “encounter” with Judge Linda Parker. It appears that AG Nessel is trying to pile on. At least it helps other lawyers make some money.
Mr. Moss ends with “IF JUDICIAL REVIEW DIES, THE JUDGES HAVE ONLY THEMSELVES TO BLAME.” He’s right. So is Leanne. If the people, based on what they see happening, start looking at the courts as nothing but a collection of partisan hacks and political whores bought and paid for by special interests, the only question they’ll ask are they buying a streetwalker or call girl. Now SCOTUS can fix this when they return in October from their summer vacation. If they want to do so. And if they do, will they face their own judicial rebellion from judges like those previously listed and from the inferior court judges like Brian E. Murphy in Massachusetts who the Supremes had to spank (7-2 with Kagan now in the ranks of 7) right after their decision in CASA where he felt it really did not apply to his order?
Film at 11.
Kritarchy (kritocracy) has a 3,000 year history. The Book of Ruth begins:
“In the days when the judges ruled, there was a famine in the land.”
Our last wrenching experience here in Michigan – which triggered a popular revolt – was U.S. District Judge Stephen J. Roth’s decision in Milliken v. Bradley.
Michigan politics was changed forever.
The reaction from Republicans to the SCOTUS ruling conveniently ignores recent history. Republicans LOVED the idea of a single district judge issuing nationwide edicts when it was “their” judge, most notably Texas U.S. District Judge Matthew Kacsmaryk. They sought him out is for his rulings on issues like abortion and immigration and he didn’t disappoint.
You rightly note that the courts have historically served as a check against overreach by the political majority. The SCOTUS ruling isn’t a remedy – it just exacerbates the ever-growing shift of power to the White House. The ruling effectively substitutes the unfettered decisions of one person (the President) from the decisions of federal judges across the nation. Any President who is a master of judicial delay is free to unleash just about any unconstitutional executive order he/she desires knowing that it would take months/years to get it to the Supreme Court.
What is needed is an end to judge shopping, something that saved Trump in his Florida criminal case. A judge he appointed effectively became a part of his defense team, successfully stalling a slam-dunk case to the point where Trump was able to move to the White House instead of the Big House.