The Supreme Court’s liberal justices issued dire warnings Friday about the majority’s decision to rein in lower court judges.
Justices Sonia Sotomayaor, Elena Kagan and Ketanji Brown Jackson dissented in a case considering President Donald Trump’s executive order on birthright citizenship, where the majority held federal courts likely do not have the authority to issue nationwide injunctions.
“The rule of law is not a given in this Nation, nor any other,” Sotomayor wrote. “It is a precept of our democracy that will endure only if those brave enough in every branch fight for its survival.”
Kagan, who has previously expressed skepticism of nationwide injunctions, signed onto Sotomayor’s dissent, along with Jackson.
Several liberal groups took Sotomayor’s advice to “promptly class action suits and to request temporary injunctive relief” hours after the opinion was released in a new effort to block the executive order.
“Today, the threat is to birthright citizenship,” Sotomayor wrote. “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief.”
In her own dissent, Justice Ketanji Brown Jackson suggested the majority’s decision was an “existential threat to the rule of law.”
“Perhaps the degradation of our rule-of-law regime would happen anyway,” she wrote. “But this Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.”
Justice Amy Coney Barrett had pointed words for Jackson, whose position she said “would make even the most ardent defender of judicial supremacy blush.”
“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Barrett wrote in the majority opinion. “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
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