The Solicitor General Embraces Judicial Supremacy
He had to for his argument against universal injunctions to work
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Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday’s oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.
What I did not fully understand until yesterday’s oral argument is why this concession is needed to make the government’s argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.
Whether the Trump administration can be trusted to deliver on Sauer’s concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.
Judicial Supremacy
In its application before the Supreme Court, the government stated that Supreme Court decisions “constitute controlling precedent throughout the Nation. If this Court were to hold a challenged statute or policy unconstitutional, the government could not ‘successfully enforce [it] against anyone, party or not, in light of stare decisis.’ Griffin v. HM Florida-ORL, LLC, 144 S. Ct. 1, 1 (2023) (statement of Kavanaugh, J.).”
Sauer reiterated to at least five Justices at oral argument that the government would follow a judgment of the Supreme Court and would respect the precedent it creates, universally with respect to non-parties.
Justice Kavanaugh quoted the passage from the application above and asked Sauer if he agreed, and Sauer said that he did.
Sauer told Justice Sotomayor that the Court “would have the authority to issue binding precedent nationwide.”
Sauer told Justice Kagan that a Supreme Court decision on a matter “would be a nationwide precedent that the government would respect.”
Sauer agreed with Justice Barrett that the government would “respect the opinions and the judgments of the Supreme Court” and, when she asked whether he was “hedging at all with respect to the precedent of this Court,” he said he was not. Sauer then referred to the passage from the application above and stated that “we stand by that completely.”
Sauer appeared to agree with Chief Justice Roberts that the Supreme Court “can issue a decision and it will bind everything else.”
These very important concessions create an apparent puzzle: If (as the government argues) Article III precludes lower courts from issuing universal relief, why does it authorize the Court to do so? The answer is that it doesn’t. A Supreme Court judgment does not bind non-parties any more than a lower court judgment does so. Rather, the government says it will respect the Supreme Court’s precedent, not because the judgment requires it, but rather because ... Well, it’s not so clear why, and the government does not say!
There is a big debate on this issue that I need not get into now, but the answer has something to do with structural constitutional principles, norms(!), and the practical need to make the legal system work. This latter point is especially salient when it comes to the validity of universal injunctions.
Why Judicial Supremacy Is Necessary Here
The government’s main legal argument against universal injunctions in a nutshell is, as Judge Learned Hand put it, “[N]o court can make a decree which will bind any one but a party; a court of equity . . . cannot lawfully enjoin the world at large, no matter how broadly it words its decree.”
Assume for purposes of argument that, as I believe, the birthright citizenship ban is clearly unlawful. A prohibition on universal injunctions creates a practical problem of how courts can prevent the government from acting illegally.
If a comprehensive class action is unavailable, plaintiffs might bring hundreds of lawsuits around the country and win every one, but only the plaintiffs who sue can get relief from the illegal action. If universal injunctions are disallowed, many thousands of persons born in the United States and warranting birthright citizenship would be denied such citizenship because they cannot afford or find a lawyer. In theory, this result would be the same even if the Supreme Court declared the birthright citizenship rule unconstitutional, because even Supreme Court judgments as a general matter cannot bind nonparties.
Taken to its logical conclusion, and considered in isolation, a prohibition on universal injunctions thus means that federal courts, including the Supreme Court, cannot provide comprehensive injunctive relief to the broad array of harmed plaintiffs who cannot certify a class and who cannot individually bring lawsuits. There is no way the Court would accept this outcome—especially in a case where the government is acting blatantly illegally.
This is why Sauer’s concession on the supremacy of judicial precedents is so vital. It permits the Supreme Court to impose universal relief when it enjoins the government from unlawful action—not through the bindingness of the judgment, but through the operation of precedent, which the government pledges to abide by. At the same time, this approach avoids the evils of universal injunctions—such as the asymmetric burden it poses on the government to win every suit, the preclusion of useful percolation, and forum shopping.
Glitches in the Argument
The concession on judicial supremacy, which is really a concession on Supreme Court supremacy, solves some of the hard issues in the case, and does so in ways that the Court might find attractive since it underscores the Court’s importance on several dimensions. But other problems remain.
The main problem is that the government can engage in rampant illegality with respect to many people who cannot for various reasons sue the government during the years that it typically takes for the Supreme Court to rule on the matter. Sauer struggled to address this issue satisfactorily.
The problem would be attenuated if the government gave a court of appeals precedent the same respect it pledged to give a Supreme Court precedent. The government stated in its application that a “court of appeals’ published opinion . . . constitutes controlling precedent throughout the relevant circuit.” But Sauer hedged on this point at oral argument, saying only that the government would “generally” respect court of appeals precedent. This is an important issue. If the government is bound by circuit precedent within a circuit, the elimination of universal injunctions is much less significant.
Justice Kagan identified another big problem: In cases of obvious government illegality, where the government will consistently lose in lower courts, only the government can bring the case via certiorari to the Supreme Court. Kagan speculated that the government would do something overtly unlawful, and decline to seek certiorari, thus depriving the Court of an opportunity to address the merits since the Court can only resolve cases brought to it, and the winning parties below cannot typically seek certiorari. The government would lose the relatively small number of cases to plaintiffs who sued and won in lower courts but still be able to execute its illegal action against, as Kagan put it, “the vast majority of people to whom [the EO] applies.”
Sauer had no good answer to this question other than to deny the premise by saying that the government would seek certiorari if it loses below. But Kagan’s point is a problem for Chief Justice Roberts’s proposal to expedite cases in response to concerns about unredressed illegal action.
The Chief Justice mentioned that it need not take years for cases to reach the Court, and noted that the Court decided the TikTok case in a month. If the trade off for eliminating universal injunctions is accelerated Supreme Court decisionmaking without lower court percolation, as in TikTok, that would not be a large improvement. As Sauer said, a primary reason to eliminate universal injunctions is to prevent “rushed, … fast and furious decisions on the merits.” Yet for cases of obvious government illegality, the Court in a regime of no universal injunctions will be under enormous pressure to expedite the case to reach the merits quickly.
Assuming, that is, that the Court is able to expedite. The Chief Justice’s solution only works if a losing party below seeks review in the Supreme Court. In cases of obvious government illegality, as Justice Kagan pointed out, that might not happen. The government might prefer to live with the lower court “losses” that are limited to parties and thus win the war on illegal action.
The Marbury Gambit
Five Justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—had embraced various degrees of doubt about universal injunctions prior to oral argument. Justice Kagan had expressed doubt about them in off-Court remarks.
Despite several Justices’ concerns about the legality of the birthright citizenship order, I think the Court will tamp down on universal injunctions, though how and to what degree they do so is hard to predict. But it became clear at oral argument—and indeed, it was clear in the government’s emergency application to the Court—that the government realizes that the price of getting rid of universal injunctions is to pledge respect to Supreme Court precedent so that the Supreme Court, at least, can ensure that government illegality can be stopped in full.
Given the vicious attacks on the federal judiciary by the Trump administration, and the public uncertainty about whether the administration would comply with Supreme Court judgments and precedents, Sauer’s extraordinary concessions to judicial supremacy will likely feature in the Court’s opinion as a lynchpin to the demise of, or at least attenuation of, universal injunctions. If so, the Court, as in Marbury, would be asserting a greater power even as it denied itself (and lower courts) a less significant power.
Is Sauer’s Concession Trustworthy?
But even if Sauer’s concessions end up in a Supreme Court decision, will the Trump administration stand by Sauer’s pledges? Will a later Sauer stand by yesterday’s Sauer? In a normal administration the Court could take Sauer’s concessions on judicial supremacy to the bank and rely on them fully as a basis for judicial decision. But the Court will rightly wonder, and I wonder, whether that is so here.
One assumes that Sauer’s concessions were vetted and cleared by the White House, since it has its hand in every major Justice Department decision. But even if that is so, the president is mercurial and unreliable, and conservatives tend to love departmentalism, at least when a Republican president is in office. It is easy to imagine the administration down the road violating Sauer’s pledge or, more likely, threatening to violate it, playing games with Supreme Court precedents, and the like.
This possibility is a caveat to everything I said above, and the Court knows it and will consider it in deciding the case. One can expect a Justice to raise the untrustworthiness point in a dissent from a majority opinion that relies on the Sauer concessions to narrow universal injunctions. And it will be a fair point. Only time will tell if Sauer’s concessions are real.
And yet despite this, Sauer’s concessions remain important. I cannot recall a prior solicitor general that went to such lengths to pledge fealty to Supreme Court precedent. Trump 2.0’s disrespect toward courts has thus already resulted in extraordinary concessions to judicial power—concessions that will now likely end up in a Supreme Court decision. These concessions will to some degree make it harder, even in the Trump administration, for the administration to backtrack, since personal professional reputations before the Court—especially in the Solicitor General's Office—are now very much on the line.
No one can predict whether the Trump administration tomorrow or next week or next year will stand by a statement it made yesterday. Nonetheless, in yesterday's extraordinary public concessions one sees the administration tying its hands a tad in a direction that might on some dimensions result, as Bob and I and others have speculated, in a contraction of presidential power as a result of massive presidential overreach.