Cat fight at the Supreme Court!

meeowwww . . .

Girls don’t usually fight. There are sound reasons for this – reasons of general decorum, biology, hormones, jewelry, dresses and hairdos.

But when they do, boy oh boy, it can be a doozy. It happened yesterday at the Supreme Court.

The case was an appeal of a district court order issuing a “universal injunction” against President Trump’s executive order seeking to abolish “birthright citizenship.”

Birthright citizenship is the kind you get if you’re born in America even if your parents are here illegally. The 14^th Amendment seems to provide for it, although there is a non-frivolous argument that it does not.

A universal injunction is one that binds the enjoined party even against persons not involved in the lawsuit.

The district court judge in this case found Trump’s executive order against birthright citizenship to be in violation of the 14^th Amendment, and issued an injunction forbidding its enforcement against the plaintiff in the case.

Here’s where it gets dicey. The judge’s injunction applied not just for the benefit of the named plaintiff, but for the benefit of all other people in the country even though they weren’t parties to the case. It was a universal injunction.

Trump appealed the universal injunction on two grounds: (1) you should not get citizenship merely by being born in America if your mother was here illegally – in other words, the 14^th Amendment does not provide for birthright citizenship – and (2) the universal injunction barring enforcement of the executive order even against people who were not parties to the case was an unconstitutional overreach by the judge.

The Supreme Court heard the latter argument on universal injunctions, and reserved the substantive birthright citizenship issue for another day.

It was a typical 6-3 political decision, meaning the six Republican-appointed Justices beat the three Democrat-appointed ones. (Elections have consequences, as President Obama once pointed out.)

The opinion for the Court was by Justice Amy Coney Barrett. She walked through the history of universal injunctions, noting that they scarcely existed until recent times.

Now that they do exist, they are prone to abuse. A political plaintiff can choose to file his suit in a district that is notoriously favorable to his politics. Then he gets a favorable decision – typically without even a trial but instead on a preliminary basis – that applies for the benefit of all potential plaintiffs everywhere.

In theory, the district court’s decision could be reversed after a trial, but that’s years away, and, in reality, the trial decision from the same judge will be the same anyway. (On many of these issues, there’s no right to a jury trial.)

It’s actually even worse than that. Say for a moment that the plaintiff somehow loses his bid for a universal preliminary injunction in a favorable district. There’s nothing to stop another plaintiff from filing the same suit in a different favorable district. If the second plaintiff wins in that second case in that second district, he can expect to get the universal preliminary injunction that the first plaintiff was denied.

The defendant – the government in this case – is thus not only required to win in one district favorable to the other side, but is required to win every case in every district where every plaintiff files. One loss, and all are lost.

Weirdly, the universal preliminary injunction obtained by the second plaintiff – or third or fourth – who prevailed could even have the effect of reversing the loss by all earlier plaintiffs. The earlier, losing plaintiffs wind up getting unlimited bites at the apple by enjoying the repeated re-litigation of the matter by later plaintiffs.

The Supreme Court via yesterday’s opinion by Justice Barrett finally put a stop to routinely issued universal injunctions. Trump is doing well at the Supreme Court, and this was his biggest win. Our system in largely working.

Justice Ketanji Brown Jackson issued a peptic dissenting opinion. You’ll recall Jackson. She is the woman who was asked at her Senate confirmation hearing, “Can you define the word ‘woman’?”

It was obviously a gotcha question which Jackson wanted to avoid answering. A smart and articulate woman — not too much to ask for in a Supreme Court Justice — could have dodged the question with a little BS such as, “Well, that word is used in many different ways, Senator. There’s a biological way, a social way, a behavioral way, a gender way, and . . . blah blah blah . . . mumble mumble . . . ”

Instead, Jackson gave the Republicans a sound bite for the ages: “I can’t . . . Not in this context. I’m not a biologist.”

Bob Dylan said you don’t need to be a weatherman to know which way the wind blows. He never met Ketanji Brown Jackson.

Questioner: Can you tell me which way the wind blows, Ms. Jackson?

Jackson: I can’t. I’m not a weatherman.

In another recent dissent by Jackson (thankfully, she appears to specialize in dissents) she lamented that the Supreme Court’s decision “comes at a reputational cost for this Court, which is already viewed by many as being overly sympathetic to corporate interests.”

Say what? A Justice of the Supreme Court is openly worrying, or pretending to, that their decisions might be viewed as sympathetic to “corporate interests”?

First, the Court is supposed to apply the law to the facts, public perception be damned. Second, the allusion to “corporate interests” is amateur activism. Is the Court supposed to disfavor corporations? What about large partnerships? What about LLCs? Non-governmental organizations? Charitable foundations? Sole proprietorships?

Is the law different depending on the choice of entity that one party made when they set up their organization?

Back to yesterday’s universal injunction case. Jackson’s dissent warned that the decision was “an existential threat to the rule of law.”

That’s a serious allegation. Her allegation is that the Supreme Court whose job is to interpret the law is threatening its very existence.

I have three responses to Jackson’s allegation. One, yawn. Two, notice how people who aren’t very smart like to use the phrase “existential threat” as if it makes them a French philosopher or something. Three, if abolishing universal injunctions threatens the rule of law, then how did the rule of law survive for two centuries without them?

Justice Barrett in response wrote that Jackson’s dissent “is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” She observed that Jackson “decries an imperial Executive while embracing an imperial Judiciary.”

Barrett wasn’t done: “Observing the limits on judicial authority – including, as relevant here, the boundaries of the Judiciary Act of 1789 – is required by a judge’s oath.”

Finally came Barrett’s knockout punch: “Justice Jackson would do well to heed her own admonition: ‘Everyone, from the President on down, is bound by law.’ That goes for judges too.”

In the cloistered confines of the Supreme Court, that constitutes a beating. Jackson was rightly condemned in a written opinion joined by six of the Justices for advocating a position contrary to two centuries of precedent and the Constitution itself, endorsing an imperial judiciary, violating the judge’s oath, and refusing to be bound by law even as she wildly accuses the Court of threatening the very existence of law.

Justice Barrett as the author of that take-down put to rest any doubts. She’s all woman, and she’s got a pair.