A Curb on the Politicization of the Courts
From the high bench justices hand President Trump a big win on the question of the abuse by district judges of universal injunctions.

Itâs time to bid a not-so-fond farewell to the so-called universal injunction. Thatâs legal parlance for the nationwide diktats handed down from the bench by federal district judges â often, it seems, with a political ax to grind â that have served to thwart President Trumpâs ambitious policy agenda. The Supreme Court, by finding that federal judges have exceeded their power under law and the Constitution, is handing a substantial win to Mr. Trump.
Well-earned, too, we donât mind saying, on Mr. Trumpâs part. Yet the extent of the victory, as a policy matter in this case, is not yet clear. The dispute that brought the use of injunctions to the court centers on birthright citizenship. Mr. Trump, by executive order, seeks to end the custom of automatic citizenship for children of illegals. The high court left the decision on the constitutionality of his dĂ©marche with the lower courts, where it could yet fail to prosper.
During oral arguments in Trump v. CASA, the justices sounded skeptical as to the merit of Mr. Trumpâs effort to change federal policy on citizenship. On the question of the powers of the court, though, Mr. Trump â yet again â won the constitutional point. Thatâs because the overuse of injunctions by judges had become highly political. The relief granted to Mr. Trump is likely to accelerate his ability to advance his agenda in months to come.
Thatâs a point these columns underlined by marking the Babylon Beeâs scoop about Mortimer Dithers. Heâs the satirical imaginary judge who, the Bee broadcast, had appointed himself president. The Trump administrationâs agenda, the breathless Bee bruited, âwas stopped in its tracksâ by the judge appointing himself commander in chief. âThereâs nothing we can do about it,â the Bee quotes âlegal expertsâ as saying. âHeâs a federal judge.â
Good for the Bee. The gag, we suggested at the time, marks better than any jape weâd yet seen the hubris of federal district courts in a race to stymie a duly elected president. This is a major issue, and someday the high court will have judges who can write and think so devastatingly to the point as the Bee. Justice Amy Coney Barrett, writing for the majority, echoes these concerns by noting the startling rise in the use in recent years of the broad injunctions.
âUniversal injunctions were not a feature of federal court litigation until sometime in the 20th century,â she explains, with the first issued in 1963. Since then they have bedeviled presidents of both parties. âBy the end of the Biden administration,â she adds, âalmost every major presidential actâ got âimmediately frozen by a federal district court.â In the first 100 days of Mr. Trumpâs second term, âdistrict courts issued approximately 25 universal injunctions.â
The majority looks askance at this judicial innovation, noting there was no such tool available to judges in the Framersâ era. Nor was this power granted in the Judiciary Act of 1789. Yet, Justice Barrett reckons, âhad federal courts believed themselves to possess the tool, surely they would not have let it lay idle.â Itâs a credit to the courtâs commitment to originalism â and to judicial modesty â that the majority now looks to dial back this arrogation of judgesâ power.
The majority explains, too, that much of the efficacy of these nationwide injunctions can be replicated by the use of class actions in the court system. Justice Barrett notes that âuniversal injunctionsâ can be seen as âa class-action workaround.â Such actions give judges the power, in limited cases, to make rulings with wider applicability, but the procedural limits required to certify a class in a legal dispute provide a check on blatant judicial activism.
Justice Ketanji Brown Jackson frets that the majority strips courts of power to âorder everyone (including the Executive) to follow the law â full stop.â She ignores, as Justice Barrett sees it, that per the Constitution âwhat matters is how the Judiciary may constrain the Executive.â Justice Barrett urges her colleague to âheed her own admonitionâ that âeveryone, from the President on down, is bound by law.â Quoth Justice Barrett: âThat goes for judges too.â