Last week, President Donald Trump proclaimed the “GIANT WIN” handed to him by the Supreme Court in the birthright citizenship case. The bragging rights came after a supermajority of six justices (three of whom he appointed) sharply limited the centuries-old practice of universal nationwide injunctions. The three liberal justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, dissented trenchantly.
The high court was okay with lower court rulings temporarily throttling a flagrantly unconstitutional executive order that stripped the natural-born citizen plaintiffs. It refused, however, to extend the freeze to possibly hundreds of thousands of similarly situated persons who were not parties to the litigation.
Justice Amy Coney Barrett, a former law professor perhaps stinging from a recent MAGA rebuke for going wobbly on Trump, led the charge for the MAGA supermajority. In her prolix opinion, she used a shopworn hypothetical that professors use with first year law students. She called it “archetypical,” but Barrett mousetrapped herself. Her example proved the plaintiffs’ case.
The hypothetical was that it is illegal if my neighbor plays loud music at night. Lawyers call it the tort of nuisance, and I can enjoin it. That’s legalese for going to court and getting an order that the defendant turn his music down or switch it off, even if that is more burdensome on the defendant than necessary to give the plaintiff complete relief.
Typically, the only parties to the lawsuit are me (the plaintiff) and the defendant (my inconsiderate neighbor). Other neighbors, who find the music offensive, are not parties. But if I win, they benefit from the court order. Barrett saw this benefit as “incidental.” But incidental to what? The lawsuit, the injunction? She did not elaborate.
I could start a class action, but I may not be able to certify the class for technical reasons I won’t bore you with, except perhaps there are not enough neighbors to make up the class. This is called not having the required “sufficient numerosity” of parties.
The bottom line: Everybody on the block benefits, and depending on how loud the music is, everyone within audible distance. That is hornbook nuisance law, and its roots trace back to 12th-century England—that is, until the Supreme Court came down with its crabbed procedural decision last week on birthright citizenship.
Binding third parties to an injunction is not a whacko creation of Zohran Mamdani. Consider the Bill of Peace, which dates back to England in the 17th and 18th centuries. It was a way for courts to address disputes involving multiple parties with common claims. The concept may have even earlier roots, possibly originating in the decisions of the English General Eyre as early as 1309. The United States adopted the English Bill of Peace in mass tort or similar situations in the 19th and early 20th centuries. Supreme Court Justice Joseph Story, an expert in the law of equity, who served from 1811 to 1845, advocated it in the United States. The Supreme Court used the Bill of Peace concepts in developing and implementing class action. This evolution continued with Federal Equity Rule 48, in place in the United States from 1842 to 1912, providing a class action to reduce the load on the court system.
Did the Court’s supermajority apply the law as it is written? No, sir. It’s much easier for the risk averse six justices to kick the can down the road than avoid confronting the executive. So, they decided to confront the issue of birthright citizenship someday, somehow, when it is appropriately presented—but not now.
The Trump Justice Department knew what it was doing. It neatly packaged the case so it would not be about birthright citizenship, only about the proper remedy. But it really was. You can’t play Hamlet without the ghost. Not even the reactionary justices, Thomas and Alito, dared challenge the Constitution’s command that someone born in the United States is an American citizen. They sat mum on the issue when the case came before the Court for oral argument. Because of an ideology not sourced in law or the Constitution, they don’t like birthright citizenship. They don’t like the Civil War amendments anyway. The citizenship clause of the Fourteenth Amendment was crafted to reverse the Supreme Court’s execrable Dred Scott decision, which denied citizenship to black Americans. Parenthetically, that amendment, among other things, disqualifies a president who engaged in insurrection. But they must go with it because they profess to be textualists. The Constitution means what it says, no more and certainly no less. So, they just ignore it.
I hope all the justices would acknowledge that where there is a right, there’s a remedy. And all the justices agreed that an equitable decree, such as an injunction, can benefit non-parties “incidentally” (for example, in a voter redistricting case) where necessary to afford “complete relief.” If there is ever a case where it is necessary to afford “complete relief” to non-parties, it is this one.
And they know they were wrong. The birthright case is, in my book, one of the most inequitable decisions ever made. It has created a managerial mess as thousands of cases making the same allegations and involving the same issues reach its docket to redress a massive constitutional tort.
This hypothetical is closer than Barrett’s. It is about an infant born in Texas, of alien parents who is, under our Constitution, laws, and settled Supreme Court precedent, an American citizen. That infant urgently needs Medicaid, which is delivered to American citizens. The infant hasn’t sued, perhaps because his parents fear being arrested by masked ICE agents needing to fulfill White House quotas. According to the supermajority, the baby is out of luck. He must bring his own action. And the Court will deal with it, at some point. What if they don’t or can’t? Such a case cries out for equity—not someday, but now.
Trump’s nationwide executive order on birthright citizenship is an abomination. Its issuance contradicts the Constitution and violates Trump’s oath to “faithfully execute the laws.” It is impossible to conceive of a jurist or a lawyer who thinks it constitutional.
There is a tyranny to analogy, and here, with a simple analogy, Barrett leaves the Court hoist with its own petard. Courts should use the universal or nationwide injunction with exquisite restraint. But if there was a paradigm case for a nationwide injunction, this is it. Where an executive act is so obviously illegal, stripping American citizens of their birthright, it should be enjoined. The court should stop the music for everyone similarly situated, wherever they live on the block.
This case was not about the law. It was about loyalty to Trump. The dead giveaway was Barrett’s concluding observation that, in her dissent, Justice Jackson “decries an imperial Executive while embracing an imperial Judiciary.” Is the Supreme Court no longer seeing its duty to stand up to the President when he violates the Constitution? As somebody with common sense said at a time of an earlier “American Crisis”, “these are the times that try men’s souls.”
