The Supreme Court Just Gave Trump a Free Template to Win by Losing

Yahoo

5 hours ago

On Friday, the Supreme Court held that federal courts lack authority to issue universal injunctions. The decision in Trump v. CASA deprives the judiciary of a vital tool in checking the most egregious abuses of executive power. But it also does something more pernicious, creating a blueprint for the Trump administration to win by losing.
Universal injunctions are an extraordinary and controversial remedy because they cover everyone harmed or threatened by a defendant's conduct, not just the individual plaintiffs. But sometimes extraordinary lawlessness requires an extraordinary remedy. That core truth animates the centuries-old English tradition of equity, which developed as a system to do justice when courts of law weren't up to the task.
In the United States, equity has evolved to address ingenious and diabolical attempts by government officials to evade their legal obligations. From the early 20th century through the Civil Rights era and beyond, equity provided new, meaningful relief when the existing legal order came up short. To take just one of many examples, Southern school boards resisting desegregation often forced Black plaintiffs to bring individual lawsuits, but piecemeal litigation barely made a dent in massive resistance until equity stepped in. A new class action device—an equitable innovation—allowed Black families to harness their collective power and sue on behalf of all aggrieved people to realize the promise of Brown v. Board of Education.
This past still echoes through the current political moment as the Trump administration invents ever more devious ways to skirt the law. One might think its sheer brazenness, the way it almost relishes violating the law, would lead courts to intervene more aggressively. But often the administration's goal is not to win in court. The point is instead to inflict maximal pain and chaos that courts, especially after CASA, are largely powerless to undo.
Consider several examples. The Trump administration has tried to prevent Harvard University from enrolling any international students. A federal judge quickly blocked that effort, calling the administration's arguments 'absurd.' But the loss doesn't really matter. The administration's saber rattling has driven numerous institutions, including Columbia University, to the bargaining table as President Donald Trump has threatened to withhold hundreds of millions of dollars in research grants. And on the same day that the Supreme Court decided CASA, the Department of Justice succeeded in demanding that the president of the University of Virginia resign. The administration didn't even need to file a lawsuit to make UVA bend to its will. What a court ultimately might have said about the legality of that effort is now irrelevant.
Think about federal employees whom the administration illegally fired or threatened to fire. Even if some of them ultimately win in court, the administration will have succeeded in driving many others into retirement or other jobs. The cultivated chaos has proved far more powerful than any adverse judicial decision ever will.
Some of the most devastatingly successful efforts made headlines for months as the Trump administration simply ignored certain migrants' due process rights and even federal court orders. Although a handful of wrongfully deported immigrants might be returned to the United States in the hope that their rights and the rule of law can be vindicated, the vast majority will not, no matter what any court says.
And perhaps the clearest example of how the Trump administration can win by losing comes from the executive orders that seek to punish disfavored law firms. Every firm that has actually challenged those executive orders has scored a quick legal victory, and, tellingly, the Trump administration has not bothered to appeal those losses. Yet most firms have bent the knee, agreeing to settlements with Trump and collectively agreeing to provide billions of dollars' worth of pro bono legal services to causes he supports. The executive orders' blatant illegality is beside the point. Trump has exacted his pound of flesh, forcing some of the world's most powerful law firms to apologize for crossing him and sending a chilling message to anyone else who would do the same.
By rejecting every use of universal injunctions, the Supreme Court in CASA tacitly blessed this lawlessness. Universal injunctions had been a potent weapon against Trump's indifference to the rule of law because they essentially flipped the presumption about who should receive the benefit of the doubt. Normally, when a plaintiff challenges a governmental action as unlawful, the government gets that benefit. It may continue to enforce its policy while the suit plays out, especially as to people who aren't involved with the litigation. But when the government acts in bad faith by disregarding clear legal obligations—rewriting the 14th Amendment, jawboning universities and law firms, ignoring due process—it should lose that presumption. Universal injunctions gave ordinary people the benefit of the existing legal rules. The government could still attempt to justify its actions in court, but it didn't get the time and space to sow chaos and demand submission while court cases dragged on.
A couple of months ago, the Supreme Court seemed to recognize that we as a country had found ourselves in uncharted territory. It had gotten wise to the Trump administration's deliberate evasions of court orders as the government tried to deport people with hardly any notice or even a semblance of due process. Over Easter weekend, the court intervened with extraordinary speed to prevent one group of Venezuelan migrants from being rendered to El Salvador. Justice Samuel Alito dissented, arguing that the court's haste ignored all the usual deliberate procedures when, in his view, there was no good reason to do so. It turned out that the majority of seven justices was right to worry that the Trump administration was playing fast and loose with the law. A bus of migrants was already on its way to the airport when the Supreme Court intervened. If the justices had adhered to conventional procedures, the migrants would have been gone, perhaps forever. The majority of the court showed both creativity and courage in the face of lawlessness, at least in this one case.
That light has dimmed. A court that seemed alive to these threats has surrendered a powerful tool in upholding the rule of law. Justice Ketanji Brown Jackson's poignant dissent in CASA captures the point. By eliminating universal injunctions, the court 'has gifted the Executive with the prerogative of sometimes disregarding the law' and 'has put both our legal system, and our system of government, in grave jeopardy.'