Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

The Supreme Court just wrapped its term handing down many long-awaited decisions, including the birthright citizenship decision. That opinion significantly limited the powers of lower court federal judges. I’m joined this week by a distinguished panel of experts to discuss the implications of that case and other emerging themes from the Supreme Court.

Trevor Morrison is a constitutional law professor at NYU and the school’s dean emeritus. He served as counsel to President Obama and clerked for Justice Ruth Bader Ginsburg on the Supreme Court. He was also appointed by President Biden to the Presidential Commission on the Supreme Court. Melissa Murray is also a constitutional law professor at NYU, a legal analyst for MSNBC, and host of the podcast, Strict Scrutiny. She clerked for justice Sonia Sotomayor when she was on the US Court of Appeals. And Jack Goldsmith is a professor at Harvard Law School where he teaches about federal courts and the presidency. He served in the Office of Legal Counsel during the George W. Bush administration co-founded the publication Lawfare, and now writes a Substack newsletter called Executive Function. Also, he clerked for Justice Anthony Kennedy on the Supreme Court. All that is coming up. Stay tuned.

You can stop holding your breath. The Supreme Court term is over. Now let’s talk about what happened. Professors Trevor Morrison, Melissa Murray and Jack Goldsmith join me to discuss.

Professors, good morning. Thanks for joining the show.

Jack Goldsmith:

Morning.

Trevor Morrison:

Good morning.

Melissa Murray:

Thanks for having us.

Preet Bharara:

Usually I say good morning class, but here I’m very pleased to be joined by three remarkable academics, intellectuals, also in various measure, practitioners. And so I guess given that you all teach important areas of the law, my first question is we talk about this just concluded or about to conclude term before we get to some cases, which I’m very excited to talk to all three of you about, particularly because I think there’s some disagreement among this group.

But before we do any of that, what’s it going to be like to teach constitutional law in the fall based on this term? How much do you think reading lists and curriculums and lectures will have changed? Which is one way of asking, I guess, how significant the past term has been? Dean Emeritus Trevor Morrison, do you want to start?

Trevor Morrison:

Sure. Good to be with you all. So I taught constitutional law to first year law students this past spring and there were many moments in particular in the part of the course on presidential power where it seemed obvious that we needed to acknowledge that there were a bunch of new questions being posed about the extent of presidential power, the extent of the power of the courts to limit exercises of executive power that maybe weren’t questions that had never been asked before, but they hadn’t been pressed with the same frequency that Trump’s first 100 days in office and the rash of executive orders and presidential proclamations that he issued had triggered. I think most of those questions are still questions as opposed to things that the Court has answered as of the end of this term. I mean there are big, big questions out there that are going to come to the Supreme Court but haven’t yet arrived in full.

There are questions about the president’s removal power. the Court has signaled but not definitively held that it’s very likely to overrule the one key precedent recognizing a power in Congress to insulate certain presidentially appointed executive officials, namely the Humphrey’s Executor case. So that removal power question has been partially answered by the Court, but I think is still not yet fully answered. And so in the fall, it won’t yet be answered by the beginning of the fall semester for someone who teaches law in the fall, but it’s on the precipice. Questions about the president’s power under certain emergency power statutes to impose sweeping tariffs are huge and very consequential questions that lower courts have now answered, but the Supreme Court hasn’t yet answered.

Out-and-out lawlessness by the President in the form of just ignoring the statute requiring the ban or sale of TikTok is a question that apparently is never going to come before the courts. It’s utter presidential lawlessness. It’s just assertion of a prerogative to ignore a statute. Its constitutionality had been upheld the week before Trump entered office. Supreme Court didn’t do anything about that because there was no court case filed and no court case is going to be filed and whatever happens with that is going to be answered outside the context of anything the Supreme Court can do. For that matter, the legality of the bombing of nuclear sites in Iran is an immense question from the standpoint of military strategy and law and many things. Supreme Court was never going to address that question, never will address that question. How we think about the scope of the President’s power with respect to directing the use of the military is a huge part of any course in constitutional law, or at least huge part of my course in constitutional law. And that action by Trump is something that we’ll have to pay attention to when teaching it going forward, but nothing the Supreme Court has done this term affects it one way or the other.

The one big case I assume we will talk about is the question of universal or nationwide injunctions.

Preet Bharara:

Yes. Hold your thoughts on that

Trevor Morrison:

And that the Supreme Court did something quite consequential on that that’s going to affect how I teach federal courts, which I will teach in the fall, probably more than how I will teach constitutional law, but that’s an overlong beginning answer

Preet Bharara:

I think, if I remember correctly, Jack, we’ll get to you in a second, that you did say it was going to be a fun case to teach in fed courts. Did you not say that? [inaudible 00:06:04].

Jack Goldsmith:

I did say that. Yeah, yeah.

Preet Bharara:

You did say that. I thought so, but hold that thought. Melissa, briefly, how much are you ripping up the syllabus?

Melissa Murray:

Well, I’m on leave next year, so I’m not teaching.

Preet Bharara:

Oh, so you will have to do an extra duty ripping of the syllabus because two years will have gone by.

Melissa Murray:

Well, I mean I will say I’ve ripped up my syllabus for the last three years that I’ve taught constitutional law and-

Preet Bharara:

After Dobbs, for example?

Melissa Murray:

After Dobbs, after the affirmative action case, after Chevron. It’s been a lot of reconfiguring. So we’ve talked a lot about what it means to teach constitutional law at a time like this. And I think Trevor is right, it often offers real time opportunities to consider the scope and substance of various constitutional provisions. I remember in the first Trump administration I was set to teach Dred Scott and that was the day in which then President Trump, I guess now President Trump as well, said that he was contemplating rescinding birthright citizenship, the first time that he said that in his first term and it was like, oh wow, this is an amazing moment to be teaching Dred Scott the case that actually inspired the 14th Amendment and Section 1. So I guess there are great teachable moments in this, that’s the silver lining in all of this, but there has been a fair amount of upheaval.

Preet Bharara:

Jack, I want to set this up for you. I think we can stipulate that syllabi are changing at a radical pace every term of the Supreme Court the past number of years. You have written about the case, Trump v. CASA, I think others have as well. That’s the birthright citizenship case that Melissa just mentioned and that Trevor mentioned. Can we start, Jack, with just a non-denominational, super quick recitation of what is at issue? I think the lay public may be confused still about why this wasn’t the case that decided the question of whether or not birthright citizenship means X or Y under the 14th Amendment, but rather it was a somewhat dry discussion, which I think everyone here will agree is impactful even if there are disagreements about the nature of the decision, why this was about nationwide injunctions. Could you just explain that quickly and then I got some questions for you?

Jack Goldsmith:

Sure, I’ll try to. So President Trump issued an executive order that basically purported to change the long-standing understanding of the birthright citizenship clause in the 14th Amendment and to basically narrow significantly the people that were subject to the birthright citizenship. This got litigated around the country very quickly. Very quickly district court judges issued in these cases what are called universal injunctions, which are injunctions that have effect not just with respect to the plaintiffs in the case, but with respect to all affected persons, binding the government with respect to all affected persons everywhere. Universal injunctions have been very controversial, very important in the last 10, 12 years. Briefly, they’re controversial because they allow a single district court judge that a plaintiff can forum shop for to shut down a presidential program, to put it simply.

The government, the solicitor general asked the Court to rule on this question of the validity of universal injunctions. The Trump administration has been really angry about the universal injunctions in the lower federal courts, not just in this case, but in the whole slew of cases. And the government chose this case to answer this hugely important what I’ll call procedural or jurisdictional question or remedy question. And in the application that ended up with the hearing that ended up in this decision, the government said, “We’re not asking you to focus on the birthright citizenship part of the case. We’re asking you just to rule on universal injunctions.” You asked me to be brief, that in a nutshell is why this case ended up being about, what for some people, but maybe not for us, was this dry technical question of universal injunctions and not a word from the majority about the merits of the birthright citizenship case.

Preet Bharara:

Okay, so I have a series of questions for all of you about this. First question is, given that it has been true that Democratic presidents and Democratically appointed justices and democratically appointed Justice Departments have also decried the issuance of universal injunctions, nationwide injunctions, namely in President Biden’s term relating to student loans and the mifepristone issue. So the issue has come up before, it’s been teed up before. Either Trevor or Melissa want to take the question of why you think it was this case this time that the Court decided, “Well now we’ve got to decide this issue of universal injunctions?”

Trevor Morrison:

I’ll try two answers. One is to say, and cards on the table, this probably reflects my own earlier career stints in the executive branch, but I have very significant sympathy for presidential administrations that feel that they have been, in ways, illegitimately undermined by the forum shopping that Jack described. So the forum of choice during the Biden administration was certain districts, a federal district in Texas, one division of which contained one judge. So you weren’t just shopping for a district, you were literally judging shopping for a particular judge who were reliably issued nationwide injunctions on a range of issues. And now of course the fora of choice are in Massachusetts and Northern District of California and the like where single district judges have issued a very large number of nationwide injunctions in response to a very large number of extremely aggressive presidential programs issued through executive orders by the new Trump administration.

And I think in ways even accepting the very arguable illegality of that, the ability of a single federal district judge to just paralyze a presidential administration strikes me as problematic. Justice Barrett’s majority opinion quite rightly says that this is of relatively recent vintage and it’s been increasing exponentially in the last six months, but it’s been increasing across really the last four presidential administrations. Which is to say I thought during the Biden administration and the Obama administration and the first Trump administration that universal injunctions were highly problematic and I think more or less the Court felt at some point it had to take this issue. And where it landed on it for me on the merits of this question is about right. Now whether it had to take this issue-

Preet Bharara:

Wait a minute. So you think it’s a good decision? we’re going to get Melissa to follow up.

Trevor Morrison:

I’ll just say I think Justice Sotomayor is also right, that given that this issue has been kicking around for a while, the decision to take it up on this particular issue among the various cases percolating in the lower courts where the Court could have, maybe not in the month of June, but certainly sometime this coming fall have addressed the nationwide injunction issue in a somewhat different case, a case where it had the merits in front of it as well as the injunction issue. I think there are reasons to worry about perhaps the intent, but certainly the potential effect of the Court’s decision to take just this injunction part of the birthright citizenship case. What’s tricky for me is that I think the answer that the Court came to on this issue is about right.

Preet Bharara:

Melissa, so why is everyone upset on the progressive side of the ledger?

Melissa Murray:

So I don’t disagree with anything that Trevor has said, even though he’s no longer my boss. He was my boss once, but I don’t disagree with everything he said.

Preet Bharara:

He’s your boss emeritus.

Melissa Murray:

My boss emeritus. I will say that I think I was less concerned about the Court taking up this question on this particular issue and more concerned about the Court taking up this issue at this particular time because as Trevor said, there were earlier opportunities for the Court to rein in the universal injunction as a judicial remedy. The Biden administration asked the Court twice to take up this question and both times the Court declined to do so. So I think it is interesting, maybe even suggestive that five months into this presidential administration, the Court saw fit to take up this question.

And Trevor is right, the use of the universal injunction has bedevilled administrations of both stripes for some time now. I think it’s important to understand the context in which the increasing use of the universal injunction has arisen and it’s largely, I think, because congress is really dysfunctional. We’re not doing a lot of legislation outside of spending clause legislation. And for that reason, the administrations have had to be more aggressive in their use of executive orders, consider President Obama and the DACA program to address the failure to affect meaningful immigration reform.

So you have presidents perhaps doing more with their authority than they have in the past. This triggers lawsuits and then you have this question of how to provide a remedy if a court finds that the president’s actions have exceeded the scope of that authority. And I think in a case like the birthright citizenship case, a universal solution is appropriate because this was an executive order that would have widespread impact and a universal injunction seemed appropriate in that case. Is it appropriate in all cases? Hard to say. I think this decision tries to address that question. It doesn’t rule out the possibility of universal injunctions across the board, although it does limit them substantially. It points to some other avenues for judicial relief for litigants. We can talk about whether those are actually going to be meaningful and impactful. So I think it does try to address this, but I think for a court that already found itself on the waning side of public opinion, this was an odd choice to take up at this moment with a presidency that seems especially attuned to assertive and muscular exercises of executive authority.

Preet Bharara:

Okay, so I’m a little bit confused. I have three preeminent scholars, academics and friends in this conversation. Up to this conversation, I have seen and heard from a lot of people who I also respect, mostly on the left side, shouting from the top of the mountains that this is a horrific decision and especially terrible decision in light of the agenda of Donald Trump, that it’s an abdication of duty and responsibility and authority on the part of the Court, that it makes more lopsided the separation of powers. They take issue in umbrage at the idea that Amy Coney Barrett says, essentially in their view, look, if a president goes bananas and does stuff they’re not supposed to do and acts imperially, that doesn’t mean we should either. There’s the particular quote from Justice Barrett’s decision where she’s criticizing Justice Jackson’s dissent and says, “Justice Jackson decries an imperial executive while embracing an imperial judiciary.” A, somebody articulate for me why they are people who are shouting that the sky is falling and why they’re right or why they’re wrong.

Melissa Murray:

I think the sky is falling. Let me put it a different way.

Preet Bharara:

In this decision?

Melissa Murray:

I do think the sky is falling in this decision. I said this on MSNBC, like got into George Conway who thinks this is no big deal. I do think it’s a really big deal, not because the Court tried to narrow the scope of the availability of this kind of relief, but that they did it in this moment. This is not a presidency like any other presidency, right? This is not like the Biden presidency, this is not like the Obama presidency, the spate at which this administration is issuing executive orders, which in many cases seem to defy ordinary separation of power, seem to defy the constitution, seem to defy the rule of law, is absolutely breathtaking. And at this moment the Court has decided to step in to narrow the scope of universal injunctions as an available remedy.

And in doing so, I think it’s really hobbled the lower courts in trying to rein in this administration at a time when the lower courts have been really the only meaningful check on this president. We have Congress that is essentially on the couch not doing much to defend its own authority and it’s really been the lower courts and now they’re knee-capped in doing so. I do think this is a big deal. I agree with Trevor and likely with Jack that something should have been done about the universal injunction. I just wonder why the time is now to do it as opposed to a year ago or two years ago when the Biden administration first asked for this.

Jack Goldsmith:

Can I answer that?

Preet Bharara:

Jack, I want you to answer it, but I just want to put one quote from Justice Barrett’s opinion on the record because it may inform I think this whole debate. And to me it’s one of the most important sentences in the entire opinion. On this question of who has what responsibility, what checks and balances mean, this is a sentence that seems to be at odds with how children in this country learn about civics, learn about the checks and balances. But in your answer, could you respond to whether or not you think this is a correct statement of law? “Federal courts do not exercise general oversight of the executive branch. That’s a significant statement. They resolve cases and controversies consistent with the authority Congress has given them. When a court concludes that the executive branch has acted unlawfully, the answer is not for the Court to exceed its power too.” So talk about that, talk about what Melissa said.

Jack Goldsmith:

Sure. So first of all, I think one important reason why the Court, and they didn’t say this, why the Court took this case now. First of all, this Solicitor General asked it to. And second, I think it was actually an excellent case in which to take this because it really made the stakes clear about universal injunctions. In the oral argument, this was very plain because the stakes are very high for universal injunctions and getting rid of them and the Court was able to see the full implications of a potentially lawless president and the implications from eliminating universal injunctions. I think the Court reserved itself, we could talk about this later, lots of power to deal with a lawless executive even if it was diminishing the lower courts.

The third thing is I think that this is a part of the Court’s effort of responding to the really extremely vicious attacks by the Trump administration and members of Congress against universal injunctions, against lower court judges who are doing these things. I think that context is vitally important for why the Court took it now. This is an issue that the majority of justices have been inclined to rule on for a long time, and given the massive battles and heat on the federal judiciary right now, I think that can’t be discounted as an explanation for why they took it now.

Preet Bharara:

I’m sorry. So it was a way to give them something and take some heat off courts?

Jack Goldsmith:

All I’m saying is the context is that these lower court universal injunctions, many of which the Court disagreed with on the merits, were causing the federal judiciary a huge problem given the Trump administration. And it’s really extraordinarily vicious, dangerous attacks, there’s legislation in Congress and the like. Now you can say that’s the Court caving, but I don’t think it’s the Court caving since the Court was inclined to do this in any event. But I think that’s just part of the context about why they acted now. I think that has to have something to do with it.

As for the quote from Barrett, this is a hugely important point, the courts are not the overseers of the government. This is a fundamental point of federal court’s law, that a court has to have proper jurisdiction, has to have authority to issue remedies. It does not have a roving mandate to declare government actions unconstitutional. There are many cases in federal courts that I teach where clearly unconstitutional actions or clearly illegal actions are not able to be remedied by the Supreme Court. I’ll give you a good example. Marbury v. Madison, where basically Chief Justice Marshall said, “You know, Madison was supposed to give Marbury that commission, but I’m sorry, even though he’s got a vested right, we can’t vindicate it because we don’t have jurisdiction.” The Obamacare case four or five years ago. In my view, once they eliminated the penalty, that rendered Obamacare largely unconstitutional. the Court said, “We can’t reach that question because there’s no standing.”

So it is a hard point, but it’s an important point. This is the majority position. Justice Jackson took a different position in dissent. The majority position is we have limited jurisdiction and limited remedies and we have to stay within our lanes in deciding cases. And let me just say one more thing and I’ll be quiet. That doesn’t mean the rhetoric of this opinion is our hands are tied. We just decide these little cases. That’s not what the real subtext was. the Court is reserving to itself all sorts of power to deal with hard problems, but that was the rhetoric of the opinion.

Preet Bharara:

I’ll be right back with our court experts after this.

Trevor Morrison:

Preet, can I jump in on that?

Preet Bharara:

Yeah, please.

Trevor Morrison:

I think there are very important things that both Melissa and Jack have just said and I agree with both of them. I’m quite struck by the position that Justice Jackson took in dissent, which at least rhetorically to me, I think she’s saying that the majority has really announced a new paradigm of the relationship between the federal judiciary and executive power in particular and that it opens up a possibility that had not existed before for unchecked presidential lawlessness. Putting that accusation in its best light would have to emphasize how innovative the Trump administration is in asserting unprecedentedly broad theories of executive power, and to the extent that that’s what Justice Jackson meant to emphasize, I think she has a good point.

To the extent however, what she was meaning to emphasize that this is upending a traditional understanding about the bounds of the power of the courts vis-a-vis the executive branch, I think I fundamentally disagree with Justice Jackson because I’m with Jack. The sort of core principles that we teach every semester in federal courts are principles that talk about the power and then the limits on the power of the federal courts to hold other governmental actors to account. It’s not the courts have never had power in that space. They’ve had really consequential power in that space, but not unlimited. It has never been the conventional understanding that a court’s conclusion that a particular action by a particular government actor is unlawful is all by itself sufficient justification for the Court to impose whatever remedy it might want on that. That the question of jurisdiction and remedy is a separate question from the merits.

If that weren’t so, a four-credit course in federal courts that my students every semester say they feel given how much time they had to put into it should have been an eight-credit course, could be like a half credit one day seminar because there’d be a whole lot less. So that’s not to say that I think Justice Jackson is wrong or Justice Sotomayor is wrong to raise the concerns about how this decision is liable to play in this moment. I think that’s the right question. But I do think it’s rather mistaken to suggest that the Court in the way it addressed the extent of a court’s power to impose universal injunctions has brought us into a new paradigm of limited judicial power. I don’t think that’s right.

That having been said, to come back to Melissa’s point, the question before the Court’s decision in this space is that look, these injunctions are a matter of federal equitable power. And so it’s really left to the discretion of judges to decide in what circumstances they’re appropriate. And this particular case, given that the underlying issue is one of birthright citizenship, is actually one where the arguments in favor of injunctions, sweeping injunctions of this sort are considerably more powerful than in other contexts. So that makes some of what Melissa was saying about the oddity of the courts having selected this case to me quite compelling.

On the other hand, the very fact that the arguments in favor of sweeping injunctions in this case were as powerful as they are may well mean that down the road in these sets of litigation right now and in follow on litigation, what the Court has held about universal injunctions might not be all that consequential. The day the case was decided, multiple class action suits were filed and the class action device on this issue is awfully well-suited. And I bet that if you’d asked the ACLU lawyers in private, “Don’t you wish in retrospect that you just filed your suits as class actions in the first place?” I’d rather bet that they would say yes. It’s not every case where a universal injunction might be in play that it could be subbed out or addressed or that issue could be mooted by means of a nationwide class action, but I think it is the case in this context.

And the other is the argument made by the New Jersey Solicitor General during oral argument about the state attorneys general’s need for nationwide injunctions in order to vindicate their interests is an argument that really wasn’t met by Justice Barrett at all in her majority opinion. It remains on the table below. It’s an incredibly persuasive argument by my lights. So I think the state AGs are going to get their nationwide injunctions. That would not necessarily have been the case had the Court taken this issue up during the Biden administration in various contexts where it was raised or even if it had waited to take it up in the context of Trump administration actions on other issues. That’s what makes the choice of this case for me doubly odd.

Melissa Murray:

I’ll just chime in to say, Preet, that I think Justice Barrett was writing a decision that I think she would like to stand on its own just the question of the federal courts and its relationship to the executive. But I don’t think you can divorce this decision from the realpolitik of the moment. And I think that’s what so many people are responding to. If the concern is universal injunctions and these concerns have been raised for the last 10 years, I don’t know that any of the concerns that many people have articulated were present here. For example, none of the universal injunctions that have been issued against the Trump administration have arisen from a single division district court like the Court in Amarillo, for example. So the concerns about gamesmanship and venue shopping are not as pronounced as they were in other contexts and that is something worth thinking about here.

The question of the limits of federal court jurisdiction I think are very apt, but it’s also worth noting here that the Court, even as it hobbled the federal district courts, arrogated a sweeping amount of power to itself. And it is rich for Justice Barrett to talk about the fears of an imperial judiciary when in the same breath they have made themselves the imperial judiciary. They are the deciders of all things now and that continues a trend that this court has been on for some time. Last term, they were divesting administrative agencies of power and arrogating power to themselves to decide on the issue of agency authority to issue regulations and rules. In this term they’ve simply stripped power from the lower courts and arrogated it to themselves. So the winner here I would say is the Court as much as the Trump administration, but certainly the Court is a winner here.

Preet Bharara:

Yeah, I think Jack has said that and I want to ask you about that in a second, but I want to ask a question further to what Melissa just said. And she used a term that you don’t hear a lot in constitutional scholarship, realpolitik. And the way I think about it from the perspective of a thoughtful citizen who is not necessarily a constitutional lawyer is look, we’ve got a system of checks and balances, as I said before, with three equal branches of government, because I keep getting reminded the co-equal is not a really a word or a term and is not a necessary term. And sure, the judiciary, as Amy Coney Barrett said and as Jack confirmed and you all seem to agree, is not involved in general oversight of the executive branch.

But there is a very powerful check on the executive branch and that’s the legislative branch through the power of the person, the power of passage of legislation and everything else. In a universe in which over time, and we’ll get to this with the War Powers Act maybe even more notably, but in a world in which Congress has receded and receded and receded and the executive has advanced and advanced and advanced, and then you get an executive, I think further to Melissa’s point, who was out of control bananas, to use a legal term, must the Court bureaucratically and obligingly stick to the party line that they can’t rise to meet the moment?

Somebody I was talking to recently, maybe this is an overstatement and an exaggeration, in this particular context and in connection with this particular question went back to that old familiar phrase that the Constitution is not a suicide pact. Could you address those concerns of people who think, well, the way we put it this week I think on a different podcast was Supreme Court to America, “He’s not our problem.” Jack?

Jack Goldsmith:

I just think that is a fundamental misread of what happened in this decision. First of all, just to underscore something you said, the Court’s in a precarious position. Congress is on the sidelines doing nothing, not at all checking the president. The president himself has eliminated all legal checks to a degree I never imagined possible within the executive branch.

Preet Bharara:

Right.

Jack Goldsmith:

He’s crushing civil society constraints outside the executive branch. He’s trying to disincentivize people bringing lawsuits against him, media covering him. The only institution standing and resisting is the courts. And the courts have only the power of its words. It can’t enforce its orders. So this is a very delicate game. And we shouldn’t think that the Court is going to, in the first instance, just jump up and start pounding its chest and wagging its finger against the President saying, “Don’t do that.” A president threatening to disobey orders. That’s the first point.

Second point is I really think what the Court did in this case was to deal with a= serious problem that has bedeviled it for 10 years and then it’s been wanting to fix and it diminished lower court power vis-a-vis the president. It did not diminish the Supreme Court’s power vis-a-vis the president. In my view, I don’t know if you want to get into this now, it enhanced that power because on the first point is it left itself plenty of room that the Supreme Court, it left plenty of room for the lower courts to issue universal relief through some of the other devices we’ve been talking about. And it made very clear that it believes that it has the power to issue universal relief through its rulings.

The last sentence of the opinion was a universal injunction in which it enjoined the President from, not clear how it did this, it enjoined the president from implementing this executive order on birthright citizenship for 30 days. The government filed a piece of paper either last night or this morning confirming that it views itself bound by that. “We own this,” is what the Court is implicitly saying. Now that wasn’t the rhetoric of Justice Barrett’s opinion. But the Court is saying, “We own this but we are going slow because…” And nothing yet has happened on the substance of birthright citizenship and it remains to be seen this summer what happens. So I don’t think it’s fair to say that the Court is just saying, “Not our problem.” I know that there’s rhetoric in the opinion that definitely says that. That definitely suggests that courts can’t solve every problem in the country, and that’s true, but I don’t think that’s the import of this decision.

Trevor Morrison:

Let me just jump in there. So I think what Jack has said here is just corroborating what Melissa said about who’s the institutional winner here, and it shouldn’t be a shock. The big institutional winner, bigger than the Trump administration is the Court. And this is a point that Jack made in a piece a few days ago, and I very much agree with it. The big institutional loser, I mean set aside, we’re talking about institutions here, not the American people, but in terms of the institutional players-

Preet Bharara:

But at the end of your answer, answer the question-

Trevor Morrison:

We should care about the American people. Yes.

Preet Bharara:

… about whether the American people win or lose here.

Trevor Morrison:

So the lower courts are the big institutional loser. The Supreme Court majority, one way to think of it, this not technically what it said, but it’s just not prepared to repose that level of discretion in every federal district judge across the country because of their concerns, whether genuine or otherwise, about how that discretion has been exercised across a range of cases.

But Jack’s right, the Court, at the very end of its opinion, announces that there’s basically a thirty-day stay on the enforceability of the executive order. And there is no theory of judicial power that I’m aware of in which the Supreme Court can exercise that authority and rely on the theory in the rest of the majority opinion that divests district courts of their own version of that authority. So an opinion written by a justice who fancies herself a federal court scholar and that is very much, it’s sort of a Hart and Wechsler opinion in many ways, I think, is internally contradictory because the power that the Court asserted at the end can’t be squared with the theory of limits on equitable power in the rest of the opinion.

Nevertheless, I’m glad she said it. And I’m glad that she said that the Court understands the Trump administration to understand itself, to be bound not just by the judgments, but the opinions of the Supreme Court of the United States at a level of the high level relationship between the judiciary and the executive branch. That is a momentous statement and very important and I think the Court was doing what it could to raise the price of the Trump administration ever trying to take a different position on that issue.

And the last, and this is a question that Justice Kagan, as I recall, put to Solicitor General Sauer during oral argument is, “What are you going to do when you lose these birthright citizenship cases in the circuit courts?” And her concern, as she said during oral argument, is that, “Look, we’re going to limit the power of the lower courts and then when you lose in the lower courts, you’ll just take the loss and not appeal.” And he said in answer to her question, “Of course we will seek certiorari.” In other words, we’re going to bring this issue on the merits to you, the Supreme Court. I think if a majority of the Court understood the administration’s position to be different on that issue, if they thought there was a serious risk that the administration would not bring the merits of birthright citizenship ultimately to the Supreme Court, I think it’s possible this case comes out differently.

But what is that all about? That’s about the Court at the end of the day wanting to control this issue. Is that good for the American people? Well, that depends on what you think about what the Court is prepared to do in response to what I think it’s fair to call a substantially lawless executive branch. Right now we have a presidency that is in my mind, not exclusively but substantially lawless yet is saying it will put its legal theories, such as they are, if they lose them in the lower courts, to the Supreme Court to decide ultimately. That’s better than the alternative.

Preet Bharara:

But there’s a lot riding on that point. Melissa?

Melissa Murray:

So I just want to say I think the looming question that has lingered over certainly the last half of this term, or at least since January 20th, is wither the Court when the executive decides it’s not going to obey anything the Supreme Court says or any of the lower courts for that matter. And I think you’ve seen the Court in a number of different decisions trying to figure out how to say something forcefully but also recognize that this is an administration that may be doing its own thing and may not be willing to heed the Court and the Court doesn’t have, as Jack said, many avenues for enforcing its own decisions. So if you look at the Abrego Garcia decision that went back to Judge Xinis, the difference between facilitate and effectuate, just the parsing of language I thought was very curious given that we ordinarily expect the administration to heed the Court, I’m not sure they expected this administration to heed the Court.

And it may be the case that this decision is extracting a kind of concession from the administration, Naman, this goes back to that last footnote where you are going to listen to us. You may not listen to them and we’ve hobbled them effectively, but you are going to listen to us. And you’re not going to do gamesmanship here, you’re not going to lose down below and then refuse to bring this issue back to us. You’re going to do what you said. It is on the record. I thought it was just very interesting that she cited John Sauer and that colloquy at oral argument as opposed to some other statement of the Court’s authority to say what the law is like Marbury v. Madison, like Cooper v. Aaron. They were right there. But instead she cited that and it almost felt contractual, kind of like a mob boss extracting terms and documenting them for someone who is going to pay up.

Preet Bharara:

How much should we rely on that representation? I mean the chief question that I get on the podcast and elsewhere, in the top three is, will the Trump administration defy a court order? They’re not distinguishing between the district court and the Supreme Court. And what happens when that occurs? Jack, your piece has been mentioned. I think it’s the same piece that Trevor was mentioning. And it might seem odd to, again, a layperson that it’s a big deal for an administration to concede that it would obey the judgments and opinions of the Court. Justice Barrett in that rejoinder that Melissa was mentioning said, “The Solicitor General represented that the government will respect both the judgments and the opinions of the Court.” That should seem obvious. Jack, you write, “That might not sound like much, but it’s a huge deal.” And then you also write, “Never in the pages of the US reports, as best as I can tell, has the Court stated an expectation,” and you’re talking about the Supreme Court, “stated an expectation that the executive branch would comply with the judgments and opinions of the Court.”

That might strike a reasonable person whose legal experience is civics in grade school as quite remarkable. Do you make the statement because it’s never had to been said before because it was understood? Or is it something new? It’s hard to understand why that’s a big deal when everyone’s common understanding is if the Supreme Court decides something, the executive branch has to comply.

Jack Goldsmith:

Right. Okay. So this is in many ways one of the hardest questions in constitutional law and one of the most mysterious. And going back to Marbury v. Madison, many people think that the reason why John Marshall acted the way he did and asserted judicial review but said we’re not going to enforce it against the executive because we lack jurisdiction, is because he feared that Jefferson would defy his judgment. And the Court has always in some sense lived in the shadow of depending on the executive and worried about executive branch defiance. And this has been a small theme, especially at times of crisis in the Civil War with Lincoln and World War II with FDR. There’s always been this threat. But as you say, and especially since in the last 80 years, there’s just been an expectation. Ed Meese had a different view in the ’80s and that was controversial, but there’s been an expectation by the Court and a practice by the executive branch that the executive branch is going to comply with Supreme Court decisions and opinions, i.e., the precedents beyond the four corners of that case.

But the Court has never said that and it’s never said that because it’s a delicate thing and the President has always reserved the right for a little wiggle room on that. So it’s remarkable here that in this… Everything about it’s remarkable. It’s remarkable, A, that the Trump administration, more than any other administration I’ve ever seen, is threatening to defy on a broad scale the federal courts felt the need to make this unprecedented pledge over and over and over again at the oral argument such that Barrett could put it in her opinion. That’s extraordinary. Also, the fact that they came in prepared to make that concession knowing they would need to. It’s kind of a remarkable testament to the Court’s power.

On the other hand, this is the other point you made, it’s an amazing thing that the Supreme Court has to put in the opinion that the Solicitor General has agreed. He’s going to agree with our opinions and judgments as if that’s a major concession, which it was. But the big point is I really don’t think, they came close in US V. Nixon, the Watergate tapes case, this issue was briefly mentioned at oral argument. It was touched on slightly in the opinion. This has never been discussed between the executive branch and the Supreme Court, to my knowledge, the way it’s being discussed now, and it’s one of the most remarkable things.

And the last thing I’ll say is can you trust this representation? I don’t think you can trust anything that Donald Trump says, and this was clearly vetted by the White House. But boy, I think the Court is in a much better position having this concession by the Solicitor General and having it in the page of the US reports. So I do think the Court improved its position in that regard.

Preet Bharara:

Very super quickly, I just want to quibble with one sentence in your piece. Jack, you state, and apologize for my cynicism about this, one of the reasons you say the Court can have comfort, you say, “Sauer’s reputation and the Trump administration’s credibility before the Court are on the line.” Respectfully, I’m not sure how much that’s worth.

Jack Goldsmith:

Okay, let just respond to that briefly. I’m as cynical as you are, I promise, about Trump’s mercurialness and his utter indifference to the law and his administration’s utter indifference to law. But what we’ve seen in this case is they care about Supreme Court victories. It matters to them. For some reason, political, legal or otherwise, they care. Otherwise-

Preet Bharara:

So long as they’re getting the victories.

Jack Goldsmith:

Well, no, they’ve abided by losses as well. And I think that’s the dance that the Supreme Court is engaged in. And I’m not saying that this is a guarantee of compliance. I’m saying, I think Trevor said this, I think it raises the cost to noncompliance. There are political appointees I predict in the SG’s office that would have to resign if they started defying their pledges, it would politically be a higher cost. Is this a guarantee that the Trump administration is going to comply with Supreme Court orders and judgments and decisions? Of course not. You can never get that guarantee with regard to Donald Trump. Is the Supreme Court in a superior position than it was four days ago? I believe yes.

Preet Bharara:

Trevor, sorry, go ahead.

Trevor Morrison:

Just to pull back and to speak to your educated listener who thinks about this from the principles of their high school civics class and the like, because that’s the perspective of the engaged American voter citizen and we should care about that perspective. I think we should emphasize there are other contexts in the Court’s history where it has been called upon to confirm that what it says in its opinions bind not just the litigants in the case, but everyone’s similarly situated. So the famous example is Cooper v. Aaron, which the Court decides in the aftermath of Brown v. Board of Education. Court holds separate but equal in public education to be unconstitutional in a set of consolidated cases that were Brown.

But those cases did not involve as litigants every single school district across the country. And so school districts in Arkansas took the position, “well, we weren’t a party to Brown and so we’re not bound by it. We understand that the Court has power to declare the law in the context of deciding cases before it, but we didn’t have a case in front of the Supreme Court, and so we’re not bound by Brown. Our theory of the 14th Amendment is a different theory. We’ll act on it.”

That issue goes up to the Supreme Court of the United States and the Supreme Court effectively says, “Don’t even think about it. We’re going to give you precisely zero ability to think that you have some space between the boundaries of what we say in our opinion resolving a case and the laws that applies to you even though you weren’t a party. And every member of the Supreme Court is an author of that opinion. All nine of them sign it. They’re doing everything they can explicitly and symbolically to emphasize that this assertion of institutional power matters.

So what is that? That’s saying as to state-level actors, everybody is bound by what we say about the Constitution, not just as to judgment but our opinions. So American people would be forgiven if they thought that this issue that the Court is now addressing and the ways that Jack is saying, extracting, I think really meaningful concessions from the Trump administration, people would be forgiven for thinking, well, this was already decided in Cooper. And the difference of course, is the relationship between the federal judiciary and the federal executive branch. And the federal judiciary adds backed by the federal Executive branch and the states, right? Because it is the federal executive branch that the judiciary counts on to effectuate its judgments. So the position of the, I think it was the Little Rock School District in Cooper, was always a stupid position. The best they could have hoped for was that the Court would say, “Well, maybe you weren’t bound, but now we’ve got a case involving you and you lose,” cite Brown v. Board of Education, still rely on the executive ranch to enforce the judgment.

Here, the fact that the executive branch is itself a repeat player in front of the Court makes this dance, as I think Jack called it, incredibly delicate. Makes the stakes incredibly high. Now, I think we have, the courts have benefited from a widespread understanding that of course the executive branch will follow what the courts say, in particular the Supreme Court, and not just the literal judgment of the case, but the import of the Court’s opinions. I think that has been our common understanding for at least since Cooper v. Aaron and probably before when it comes to the relationship between the two branches.

But it’s never had to be said out loud. And in a moment when obviously we all have reason to believe that the Trump administration is more inclined than maybe any presidential administration in American history to defy the judiciary at least some levels in the lower courts, in some contexts, that question becomes one of urgent importance. Now, can we trust the representation? I have no idea how to answer that question, but I don’t think it was a cheap concession to obtain from the Solicitor General. I think it matters because this issue matters in ways that maybe it never has, or at least it has in at least 100 years.

Preet Bharara:

More analysis about the Supreme Court is coming up after this.

Melissa, we spent a lot of time on universal injunctions and I had 19 other topics, so I’m going to give you the guest choice. Do you want to talk about gender-affirming therapy, the Skrmetti case? Do you want to talk about other ways in which we should be concerned about the assertion of executive power, like some of these immigration cases that are bubbling up? Do you want to talk about the overall trend of the court? I never give a choice of questions to guests, but there you go.

Trevor Morrison:

Wow.

Melissa Murray:

Well, actually, can I talk about, I think a lot of people have talked about Skrmetti and there’s been a lot of ink spilled on that. I think less discussion has been had about Medina versus Planned Parenthood of the South Atlantic, the case coming out of South Carolina. And I think that’s a really important one and does I think sort of line up a little bit with our discussion about Trump v. CASA because it involves the Medicaid Act, which is a statute passed under the auspices of Congress’s spending power. And I think it’s a really critically important case. You know the facts of it. The South Carolina governor in an executive order essentially kicked Planned Parenthood off of South Carolina’s Medicaid coverage formula saying that it would no longer be recognized as a provider. Although in South Carolina and elsewhere, Planned Parenthood provides a range of health services beyond abortion. The South Carolina governor essentially argued that because money is fungible, if you are funding Planned Parenthood, you’re essentially funding abortion. So they said South Carolina would no longer be a provider.

And both Planned Parenthood and one of its patients sued under the Medicaid Act for a deprivation of their rights under that statute. And they used Section 1983, the federal civil rights statute to do so. And in a decision authored by Justice Gorsuch, the Court said that because the spending clause statutes are more like contracts between the states and the federal government and they don’t necessarily confer rights in an explicit way, there is no way for private litigants to use civil rights statutes to enforce their rights under statutes like the Medicaid Act. And this was surprising because just two years ago, the Court in a case called Talevski considered whether or not private litigants could sue under Section 1983 to enforce the terms of the Federal Nursing Home Reform Act, also a spending clause statute. There in a 7-2 opinion authored by Justice Jackson the Court said that they could. And of course that is consistent with a long history of the Court blessing private litigants suing under civil rights statutes to enforce their rights to public benefits under federal statute.

So this case, I think is just really consequential both for what it means for spending clause statutes. And as I said earlier, more and more legislation is being enacted under the auspices of the spending clause in large part because the Court has closed down many other heads of congressional authority like the Commerce Clause, for example. And we are seeing that public enforcement of public benefits is not likely to happen, certainly in red states like South Carolina and certainly not under the auspices of this Department of Justice. So it really does come down to private litigants and this is going to make it exponentially harder.

It is not a new theory. I think there’s a similar move afoot in the context of the Voting Rights Act with Section 2 of Voting Rights Act, where there is a live question percolating up to the Court about whether private litigants may sue to enforce their rights under Section 2 of the Voting Rights Act, or whether that provision of the statute is only enforceable by public actors like the DOJ or states. And again, in a situation like this one where we know that the DOJ is probably less likely to bring suits against states for suppressive voter laws, private enforcement of these statutes is critically important. So this is not something that’s on everyone’s radar, but it really should be.

Preet Bharara:

Thanks so much. Jack choice for you too. You can amplify or disagree with Melissa or raise some other case or controversy that you think is worth talking about.

Jack Goldsmith:

So I spent all term following the emergency orders and very little following the orders of substance. Just on the last case, I mean I wasn’t that surprised by it because the Court has been narrowing and narrowing its implied causes of action and it’s always been harder to have implied causes of action in spending clause cases. But there was this precedent two years ago. So I didn’t think it was a terribly surprising decision, but I do think it’s a very consequential one.

Preet Bharara:

Trevor, what’s going on with executive power? That’s your thing.

Trevor Morrison:

Well, I’ll say something about that, but let me just say something in agreement with Melissa and Jack on that last one because it’s true, for decades now, the Supreme Court has been cutting back on the idea of an implied right of a private litigant to enforce federal law, whether it’s the constitution, that’s the Bivens doctrine against federal officers or federal statutes. And the Court’s refrain when it comes to federal statutes is, “Look, if Congress wanted individuals to be able to enforce the statute, it just needed to say so clearly and then they’d be allowed. It’s just we don’t want to give them an implied right to do this.” So it puts the onus on Congress in a world where Congress is totally paralyzed, as Melissa has described. Of course, that’s just the Court arrogating for itself all of the power about who gets to invoke judicial power.

But the other piece, and this does relate to executive power, is that it’s a totally different kind of decision in a world where the underlying federal statute is being reliably enforced by federal enforcement authorities. That’s what gives principal meaning to a lot of federal law. And in a context where we have an administration willing to say, “Yeah, we know there’s this statute banning TikTok, but we disagree with it basically, so we’re just going to suspend its operation.” The exercise of executive power through not acting, through not effectuating federal law was a big theme of Trump 1.0 and is going to be a big theme, but Trump 2.0. It’s being obscured because of the kind of direct confrontations with other actors attempting, in particular the courts, attempting to limit actions being taken by the Trump administration.

But in huge areas of law and life that matter to millions and millions of Americans the thing that the Trump administration is doing and is going to continue to do is just under enforcing federal law that we have had an expectation would meaningfully affect environmental regulation, consumer protection, et cetera, et cetera. Those areas of law are going to go into a period of despotude. And because private ability to enforce those laws as being cut back on by this very supreme court at the same time, I think the consequences of decisions of this sort now are different than at other deregulatory moments by the Supreme Court. Much more significant. The American people are effectively being cut out of the ability to enforce law for their own benefit at a time when the executive branch has expressed a complete prerogative just to ignore its own responsibilities, to take care that the laws are faithfully executed.

Preet Bharara:

There’s a lot of discussion and talk about all the justices, as is always true, but in particular about Amy Coney Barrett. She was a subject of a very, very lengthy profile in a major publication in the last month. Are you able to make some sort of assessments about her jurisprudence, where it’s going? Is it developing? Is it fully formed? Did the people who advocated for her to be on the bench misread some of her predilections in terms of her jurisprudence. There just seems to be a lot of speculation about who she is and who she is as a jurist in particular. Any reaction to that?

Jack Goldsmith:

I’ll take it. So several things are going on. First of all, I think the critics from the right are insane in the sense that she has been a very reliably conservative justice. She voted to overrule Roe. She authored the universal injunction’s opinion and many others. They seem to have lost their minds over an interim order ruling early on that they thought was not supporting the Trump administration. So I think Amy Coney Barrett is not changing. I think she’s figuring out who she is, but she is, as the universal injunction’s case made clear and the other opinions may clear, she is a lawyer’s lawyer with an bent and a judicial conservative disposition, ala Scalia. And that’s who she’s been and what she’s been since she’s been on the Court. So that’s speaking to the right.

Speaking to the left, she has been in the middle. She’s been more with Kavanaugh and the Chief and less with Justice Thomas, Alito and Gorsuch, I think, certainly in some big cases. So I think there’s this great hope on the left, and this is how I read that New York Times opinion that you were talking about, that they can appeal to her as the great important person who’s evolving and hope that she will end up like some people think Justice Kennedy ended up, or Justice Souter or Justice Blackmun and the like.

Preet Bharara:

But you don’t buy it?

Jack Goldsmith:

I don’t buy it on either side. I think she is who she is. I think she’s got a set of principles. It takes a while to work things out. It’s a lot more complicated on the Supreme Court than the lower courts. She’s cautious. She’s expressed caution in a conservative sense of, well, let’s not overrule something unless we have something better to replace it with, for example. And she’s extremely thoughtful and careful. But I don’t buy the criticisms or the hope, criticisms from the right or the hope from the left.

Trevor Morrison:

I’ll just say something quickly there. Yeah. I think it is saying something about the current array of justices on the Court to say that Justice Barrett is in the middle. There are lots of historical areas in the Court where she would’ve been the most conservative or tied for the most conservative member of the Court. But given where we are, I think that’s right. She is in the middle.

I don’t know that we need to say that she’s evolving in the sense of still figuring out what she thinks about key things. I think she has some pretty deep philosophical jurisprudential commitments that are easy to characterize as conservative and as formalist. I think she’s a real formalist in her judicial reasoning as opposed to a more pragmatic or openly functionalist reasoner. So she’s quite unlike Justice Kennedy, quite unlike Justice Souter, both politically but also methodologically. There’s the universal injunction opinion. It’s a very formalist, originalist federal court scholars opinion. And that reads to me like someone who has known what she thought about these issues for a good long while. Not to say she didn’t think hard about them in the context of this case. I’m sure she did.

But the opinion of hers that I’ve been thinking about a lot over the last year since it came out was her mostly concurrence, partial dissent in the presidential immunity case last term where she wrote a short, to my mind, super thoughtful, careful, Jack mentioned that she’s a careful jurist. I agree with that. Very careful opinion that would’ve recognized a substantial scope of presidential immunity from criminal charge and prosecution, but also would have underscored at least some limits on that, principled limits on that that had to do with the nature of the immunity and the source of the immunity. And therefore it was possible to mark out limits on that.

I have no reason to believe that this was ever a practical possibility, but it was such a wise middle ground opinion that I sometimes imagine an alternative history in which it was the majority opinion. It would not have totally shocked me if the three justices in dissent had been willing to go along with Barrett’s position in the presidential immunity case if it could be a majority opinion. If that were the case, that would’ve given her four. She would’ve needed one from the majority to join to make that a majority opinion. And had that been the case, I think the outcome would’ve been much better. The quality of the law that the Court provided in that case would’ve been much better. And although she ended up just writing for herself, that in the form of a path not taken, I think is another reflection of the kind of role that maybe Barrett will come to play going forward, which is not a Justice O’Connor or Justice Kennedy compromised position that tries to cobble together something just as a matter of pragmatics. But it may just be that her judicial philosophy is one that situates her in the middle, where she could end up forming majorities sometimes with the liberals, sometimes with the more conservative justices. So I think she could end up being a tremendously consequential member of the Court.

Preet Bharara:

You know what I say in response to both of those answers? Stay tuned.

Trevor, Jack, Melissa, thanks so much for being with us and helping us understand all these complicated things. Really appreciate it.

Melissa Murray:

See you later.

Jack Goldsmith:

Thanks, Preet.

Preet Bharara:

My conversation continues for members of the CAFE Insider community. In the bonus for insiders, Trevor and Jack discuss whether the US bombing of Iran’s nuclear facilities was constitutional. To try out the membership head to CAFE.com/insider. Again, that’s CAFE.com/insider.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Trevor Morrison, Melissa Murray and Jack Goldsmith.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @PreetBharara with the hashtag #AskPreet. You can also now reach me on Bluesky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com.

Stay Tuned, as presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.