Jul 02, 2025
The instrument is known as a nationwide injunction, or universal injunction as the court seems to prefer. Basically, it allows federal judges to stop the executive branch in its tracks whenever they think it’s going constitutionally astray. This may seem right and proper given what we all learned in high-school civics, which is that we’re all under the law, presidents included, and that we must all pay the price when we violate it. And since the Constitution is the supreme law of the land, the principle goes double as far as America’s foundational legal document is concerned. And who is better suited to checking a runaway presidency than the federal judiciary?
So liberals cheered when Justice Ketanji Brown Jackson offered a ringing defense of such measures on the grounds that the Trump’s attempt “to vanquish so-called ‘universal injunctions’ is, at bottom, a request for this Court’s permission to engage in unlawful behavior.” And it’s why they hung their head when Amy Coney Barrett, speaking for the majority, accused judges of going too far. How can judges go too far when something as sacred as the Constitution is at stake? Who does Barrett think she is?
So it’s all quite simple: rule of law good, judges good, runaway executive bad.
Except that it’s not simple at all. In reality, Brown was advancing a doctrine of judicial supremacy best described as High Tory while Barrett was defending, at least formally, the elementary democratic proposition that the elected branches should not be endlessly at the mercy of lifetime appointees. Barrett, of course, was playing games since she was really providing cover for an administration that is verging on outright dictatorship, if it hasn’t crossed the line already. But it’s impossible to describe Brown’s position as democratic either since the judicial supremacy she espouses goes against any meaningful concept of popular self-government. It’s a case of both wings of mainstream political opinion flapping their way simultaneously toward authoritarianism.
Let’s start with the injunctions. Once all but unheard of, they’ve grown more and more frequent in recent decades. Courts issued an average of one universal injunction every eight months against specific actions by the Reagan, Bush I, and Clinton administrations in the 1980s and 90s. But then they issued 12 against Bush II, 19 against Obama, and 64 against Trump during his first term alone. By the end of the Biden administration, things had reached the point “where almost every major presidential act is immediately frozen by a federal district court,” according to the Harvard Law Review. For anyone interested in popular democracy, this raises an important question. What’s the point of electing presidents if an unelected judiciary can stop them in their tracks, not once or twice but repeatedly? Who rules – “we the people” or some 677 federal district court judges?
Brown’s answer is the latter. As she declared it in her dissent:
“Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law – full stop.”
She then went on to quote Felix Frankfurter, the FDR-appointee who famously declared in a 1958 case called Aaron v. Cooper that the US system is “a government of laws and not of men.” So the answer to an out-of-control executive is apparently unchallenged authority on the part of judges answerable to no one but themselves. Tyranny, to paraphrase James Madison, must be made to counteract tyranny. Or as Barrett noted: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Rule of law, the operative principle here, is one of the great clichés of the age, a phrase that rolls off every lip even though people rarely pause to consider what it means.
The reason they don’t is simple. The phrase is utterly vacuous. It means nothing. In a democracy, law is what happens when “we the people” issue an edict to the effect that individuals who engage in certain proscribed activities will incur certain penalties. If you rob, steal, or kill, you’ll go to jail - or so the people declare. Law is an instrument, in other words, a tool of popular rule.
But there’s a problem: tools can’t rule. Rule of law is no more coherent that rule of any other tool, i.e. shovels, hammers, or kitchen implements. None of them can rule because they’re inanimate. Who can rule are those who wield such instruments, which is to say the people as a whole. Democracy is not government of, by, and for the law. Rather, it’s government of, by, and for the people.
Brown dug herself in deeper the more she went on:
“It is axiomatic that the Constitution of the United States and the statutes that the People’s representatives have enacted govern in our system of government. Thus, everyone, from the President on down, is bound by law. By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law.”
There are at least three things wrong with this statement. One is far it is from axiomatic that the Constitution and the people’s representatives govern the system because no one governs it – the system is falling apart. Another is that the federal courts may claim to say what the law is, but no one really knows since the Constitution has suffered from what might be called a coherency deficit from the moment it was promulgated - which, in a nutshell, is why confusion grows the more schools of constitutional interpretation the legal academy creates.
A third problem is that it’s unclear why should “those who are subject to the law” – which is to say the people, should “conform their behavior to what the law requires” if the law goes increasingly against their interests and there’s nothing they can do about it. The Constitution is a product not of the age of democracy, but of the period preceding it. It is rife with features that we today regard as radically inequitable and unjust. These include:
A Senate based on equal state representation despite population differentials of as much as 70 to one.
A gerrymandered House that makes a mockery of one person-one vote.
An Electoral College that triples the clout of lily-white rural states like Wyoming and Vermont.
And a lifetime Supreme Court with zero public accountability.
A lop-sided Senate is why Republicans now enjoy a 53-seat majority despite receiving 1.4 percent fewer votes. A lop-sided Electoral College is why Dubya captured the presidency in 2000 despite losing by an estimated 450,000 popular votes and why Trump did the same in 2016 despite losing by 2.9 million. As for “the Supremes,” lifetime appointments, as stipulated in Article II, section one, are why the current 6-3 ultra-conservative lineup will likely persist well into the 2030s, if not longer.
Rather than a government the people want, need, and deserve, the Constitution gives them the opposite. But the absolutely worst feature is the one that Americans think about least, i.e. the amending clause in Article V. As Americans may also remember from their high-school days, this is a 140-word run-on sentence that essentially declares that two-thirds of each house plus three-fourths of the states must consent before changing so much as a comma. Thirteen states representing as little as 4.4 percent of the population thus have unqualified veto power not for a year or decade but for ever and ever. Since no one will have any trouble drawing up a list of 13 mini-states guaranteed to just say no to any effort to deprive them of their constitutional privileges, it means that structure change is effectively impossible. Mussolini’s reign lasted 21 years. Hitler’s lasted 12. Yet America’s constitutional dictatorship has gone on for centuries and may well persist for centuries more – if, that is, it doesn’t self-destruct beforehand.
So when Brown calls for the Constitution über alles, what’s she’s really calling for is for “we the people” to sink lower and lower in the political firmament. Given that institutions like the Senate and Electoral College are growing more inequitable as state population differentials continue to widen, it’s an example of how it’s not just Trump who is propelling society to the ultra-right, but the country’s very political structure.
Notes:
The Harvard Law Review article on universal injunctions can be found at https://harvardlawreview.org/print/vol-137/proper-parties-proper-relief/.
