The separation of powers that
characterizes governments in the United States assumes that each branch will act
to further its own interests, given the salience of self-interest (and
self-preservation) in human nature. It is assumed that the checks and balances
between legislative, judicial, and executive branches will keep any one branch
from dominating the other two, and, moreover, the government itself from
becoming tyrannical at the expense of the liberty of the citizenry. It is not
assumed or relied upon that a branch will prune itself without external
pressure from one of the other branches. Yet the U.S. Supreme Court may have
done so in ruling on June 27, 2025 to limit “the ability of lower-court judges
to block executive branch policies nationwide.”[1]
I contend that any real wing-clipping by 6 of the 9 justices is illusory rather
than indicative of the federal judiciary unilaterally restricting itself.
“With their decision, the
justices appeared to upend the ability of single federal judges to
freeze policies across the country,” according to The New York Times.[2]
The appearance is belied by the fact that the ruling would not go into effect
for 30 days and “the justices laid out a potential path for challengers, saying
that district court judges could consider whether to take up class-action suits
seeking to bar enforcement of the executive order on a statewide, regional or
even national basis.”[3]
The latter basis would essentially enable a district-court federal judge to
block an executive order from going into effect anywhere in the United
States. Groups that had challenged the
executive order at issue—invalidating birth-right citizenship for children of
illegal immigrants—quickly filed class-action suits in Maryland and New
Hampshire, with others expected in the following week—well within the 30 days.
As for the validity of the executive order itself, the court would decide that
in a case scheduled in the court’s next term.
It is interesting that the
justices “split along ideological lines” on a matter of judicial process rather
than on the substance of the executive order.[4]
Perhaps political ideology has more of an imprint on judicial rulings by the
U.S. Supreme Court than most people realize. After all, Justice Sandra Day O’Conner
wrote the majority opinion for Bush v. Gore (2000) before oral arguments
were heard. Might it be that the conservative justices on the bench wanted President
Trump to see a win for him even though the national judicial block of his
executive order would likely continue uninterrupted? That president had been
very critical of Justice Amy Barrett for another ruling, and she wrote the
majority opinion on the case on whether district federal judges could block an
executive order nationally. Indeed, the president declared himself the winner
from the ruling even though the six conservative justices left open a way for
district court judges to be able to continue wielding nationwide injunctions to
block the president’s policies issued as executive orders.
2. Ibid., italics added.
3. Ibid.
4. Ibid.
