Dear Justice Barrett,
It seems that you all have a Trumpian wolf by the ears. Can’t let go, can you?
A case in point is your recent majority opinion that lower-level federal courts do not have authority to issue universal injunctions, eviscerating 60 plus years of American common law. You based this opinion from your reading of the Federal Judiciary Act of 1789 and your deep historical analysis of Great Britain’s courts at the time of our country’s founding, concluding English courts did not have authority to issue universal injunctions, so we shouldn’t either. Pray tell, in your exhaustive historical analysis did you happen by chance to read anything about presidents ruling solely by illegal decrees?
You also argued that ‘complete’ and ‘universal’ injunctions were not synonymous. Your parsing of the meanings between complete and universal seemed to me like watching two drunk uncles argue the difference between jam and preserves at a family brunch. Amusing….. worthless and pointless.
You further pointed out that from about 1962 to the present, lower federal courts did issue universal injunctions. Rarely, but that recently they have become too common. Why you dismissed almost 63 years of federal jurisprudence and common law, is beyond me.
You sum up your thoughts with an aphorism: “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” I think your dictum fails to see the forest from the trees. You just gave the executive branch immense power to act extra constitutionally without fear of judicial restraint. Sort of like an open marriage, no?
What you don’t see, but what Hamilton and Madison did see, is that the Constitution is a parchment barrier to tyranny. The Constitution requires virtuous presidents and virtuous legislators and virtuous judges to survive. Trump is not virtuous by any stretch of the imagination, and you know that. Congress has abdicated its’ powers. Yet, you and Roberts act like Trump is virtuous and a ‘normal’ president.
The Court had the opportunity during the Biden administration to make this ruling when multiple courts issued universal injunctions against his executive orders. You refused White House demands for relief, particularly those dealing with student loan forgiveness. Your timing is suspect. One can argue that you all just think conservative presidents can or should rule by decree, but not liberal ones. Or, one can argue, you fear angering Trump, that you are pulling your judicial punches out of terror. You nurtured and protected this wolf when it was young, now you have this wild, undomesticated snarling beast by the ears, bared teeth inches from your face. And you caved. I think the legal term is ‘Mingo ones Braccas’ or in English ‘pissed one’s pants.’
At its core, your ruling was fickle and weak, even naïve, and follows a pattern of avoiding Trump’s public rage. In times like this boldness is required. Hamilton warned of this in Federalist 78, of the judiciary’s weakness in comparison to the ‘sword’ of the executive branch and the ‘purse’ of the legislative branch. Instead of being independent of the executive branch – what your boss liked to call balls and strikes — you all have a Stockholm syndrome like relationship with Trump, crowning him King last term, now giving him additional powers to wreck executive havoc without early and frequent checks by the judiciary. Your rulings only embolden Trump and reduce avenues for timely non-violent redress of Trump’s executive branch power grabs. Let me repeat the critical part, your ruling reduces avenues for timely non-violent redress to Trump’s illegal acts.
You opened an executive power pandora’s box. You all on the Court are fond of hypotheticals. Let’s do some to explore logical outcomes of your decision:
Hypothetical One: Trump issues an executive order invalidating the 13th Amendment, arguing it was ratified under duress. Effective immediately slavery would no longer be illegal. By your ruling, slavery would be legal throughout the land, unless paused locally, until the Supreme Court got around to declaring the executive order unconstitutional.
Hypothetical Two: Trump declares Brown v. Board of Education void and orders the segregation of federal government offices, schools, and facilities, permitting the designation of “whites only” spaces. By your ruling, ‘separate but equal’ would be legal throughout the land, unless paused locally, until you all at the Supreme Court got around to declaring the executive order unconstitutional.
While you may think that these hypothetical executive orders are outrageous, don’t you think the ban on birthright citizenship is just as wicked? While purporting to be race neutral, the ban is blatantly racist, targeting predominantly brown and black undocumented migrants and their unborn children, who make up the bulk of migrants to this country in this era. If the bulk of undocumented migrants were from predominantly white countries, vice Mexico, Central or South America, or Africa, there would be no ban on birthright citizenship. Yet you casually let the ban start in 30 days. You could have made the same ruling but paused implementation for 90 days. One suspects that the Court will overturn birthright citizenship, in part, soon.
Furthermore, post-ruling remarks by you and Roberts are not helpful. Chief Justice Roberts’ comment, “It would be good if people appreciated it’s not the judges’ fault that a correct interpretation of the law meant that, no, you don’t get to do this,…” That’s funny because mostly you all rule that Trump gets to do just what he wants in most every shadow docket case that comes before you. You know, from a philosophical and humanist perspective, a ‘correct’ interpretation is not always the ‘right’ ruling. Things aren’t always black and white.
Roberts’ comments show just how detached and callus your conservative majority have become. You act as if your decisions are purely academic exercises, without any real-life consequences, such as being born stateless in America or being put to death. You won’t be up to your assess in alligators but many literally will be.
If you wrestle with these paradoxes and nuances and life shattering decisions, it does not show in your antiseptic prose or victory laps. Show some humanity, will you. And as for your comments about Justice Jackson, I would rather have an imperial judiciary – since it doesn’t have the sword or the purse — than an unchecked imperial crazy-like-a-loon presidency, although I don’t wish to insult the Common Loon, which is a beautiful waterbird with a wonderful, haunting call.
Let me finish with a bit of history. In 1933, because of parliamentary deadlock, political polarization, and a failed economy, German Conservative parties supported the appointment of a political novice to be head of government instead of forming a ruling coalition with the Left. They preferred the fascists to the leftists. The Conservatives thought they could control this political neophyte. Sound familiar. After assuming the Chancellorship, parliament passed a law giving the new Chancellor four years to rule by decree.
That Chancellor was Adolph Hitler and it did not end well for the Germans. In a similar fashion, Congress is letting Trump rule by decree for the next four years, and you, the Supreme Court, are also permitting Trump to rule by decree. I am not arguing that Trump and Hitler are moral equivalents, but Trump is the leader of an ultranationalist populist movement that is presently eroding the rule of law, like a melting ice sheet in Antarctica. And, as the big, beautiful bill lays out in its 900 plus pages, he is not a true friend of the working classes. Instead, transferring immense riches to the top 10 percent through regressive tax policies, building a police state, and further hollowing out the American dream for most working-class folks. Do you think the $40 billion in new prisons will be just for migrants?
Sincerely,
A concerned citizen
