Lawfare Daily: Noah Feldman on the Supreme Court's Long Game

[Intro]

Noah Feldman: Good originalism would've reached the opposite conclusion. And you can see that that's the case, because what Justice Barrett did is she took flexibility, which is what equity is, and she turned it into a narrow constrained common law limitation, which is the opposite of what equity is for.

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, associate professor of law at the University of Minnesota and senior editor at Lawfare. I spoke with Noah Feldman, the Felix Frankfurter professor of law at Harvard Law School, about the Supreme Court's decision this term to greatly restrict the availability of universal injunctions.

Noah Feldman: Although I might well have ruled in the liberal way in each of these cases, if someone had given me the chance to do so and I'm, I would've certainly said I thought that was the right outcome in a lot of these cases. But there are still people on the court who care about the technical rules, and as long as they apply those technical rules against Trump, some of the time, a reasonable amount of the time, we've still got the rule of law and it's still being protected.

Alan Rozenshtein: We debate whether this is a disastrous victory for the Trump administration, or if, as Noah has argued in a provocative Bloomberg opinion column, the court is playing a long game to avoid a constitutional crisis it cannot win, thereby preserving the rule of law for future battles.

One note, we recorded this in early July before a lower court certified a class action in the birthright citizenship litigation, and also before the Supreme Court's recent unsigned order, allowing the Trump administration to implement mass firings at the Department of Education, a decision that Noah has since criticized in his column.

[Main Podcast]

So I wanna start with just kinda the high level of the, the great and provocative Bloomberg opinion piece that, that you wrote. I think in the wake of the universal injunctions case I think most of the legal commentariat that we are a part of for our sins, viewed this as if not a total disaster for the rule of law, then at least an extremely powerful victory for the Trump administration.

But your view is somewhat different. So just walk us through, kinda at a high level why you think that the court is playing a different long game as you put it, than I think most observers thought.

Noah Feldman: I think there are two different ways to get at the, the argument that I wanna make, so I'll start with the high level and then maybe move to the micro level.

The high level is that the single most important job the Supreme Court has right now and will have until the end of the Trump administration, presuming it comes to an end, is to protect the rule of law. And when I say protect the rule of law, I don't necessarily mean just the day-to-day game of trying to reach the right legal outcome in cases.

I mean, avoiding a scenario where Donald Trump, on his own terms refuses to follow court order, precipitates a constitutional crisis of some sort, and wins that constitutional crisis, thereby deeply and profoundly wounding the rule of law as a mode of mode of life and of governance in the United States.

So I wanna begin by pointing out that the reason I have the view that I'm about to express is not that I'm unafraid of what the Trump administration is trying to do. It's to the contrary. It's that I'm extremely afraid of what the Trump administration would do if they could.

And I think the Trump administration has taken every step that it can to convey to us that they are interested in the possibility of such a conflict with the Supreme Court. And I think the job of the Supreme Court is to avoid that happening. And that's itself a process that requires two different tactical approaches by the court.

First, it has to try to avoid that confrontation ever coming to a head. Now, if it that involves avoidance by just rolling over and playing dead, then that they didn't avoid it, they just lost. But they wanna avoid it happening to the extent they can. They would rather, and they ought to rather, that Donald Trump never stand up and say, I'm not following these court orders. That's what the court has to avoid.

And then the second component of that is they have to pick their battle. This is gonna be all important for what I'm, what I'm gonna argue, they have to pick their battle. They need it not to be a conflict in a situation where they're at their weakest. And they're at their weakest where the legal arguments on the court side are not the strongest, where they don't have nine justices on board. And when there's international involvement such that there might be people not within the jurisdiction of the United States, who would've to respond to a court order.

And so they need to be able to be involved in the process of choosing when that conflict is going to happen, if indeed they can't avoid it happening altogether.

Alan Rozenshtein: Okay, so I wanna dive into the details of this specific case, but before I do that, I wanna do a little more sort of table setting. So you use the term constitutional crisis. So I'd like you to define it, which I know is unfair because the question of what a constitutional crisis is–

Noah Feldman: That’s fine. I define it all the time.

Alan Rozenshtein: Alright, go for it. What is, what is a constitutional crisis in your view?

Noah Feldman: Yeah, in my view, a constitutional crisis is where two different branches of the federal government in the United States, this could happen in another country too, but two relevant branches of government are each insisting on their position in an incompatible way.

So one side says, I won't budge and you must do what I said. The other side says, I won't budge and you must do what I say. And where two other features exist: the rules as written do not tell you what's supposed to happen, so there's no absolutely clear resolution and no one knows what will happen next.

That's a genuine constitutional crisis. And I've defined it that way for the last six or seven years in writing and defended that definition. And I, I, I'm happy with it I'm, I'm, I'm sticking with it 'cause I think it usefully picks out what's scary about a crisis and what makes it genuinely a crisis.

And again, my worry is not about a just there being a crisis, it's a crisis that the court loses.

Alan Rozenshtein: Okay. So I, I think that's a, that's a, a, a nice crisp articulation of constitutional crisis. But, and I, I don't, I don't think it's helpful to get into sort of semantic debates about whether you should call this or that a crisis.

But there are different kinds of constitutional harms that are not themselves constitutional crises, right? So one can imagine a situation in which the Supreme Court either out of an abundance of caution or because it actually agrees with the Trump administration or with any administration, allows for some unconstitutional action, right? An action that you and I would agree, we read the Constitution, that seems wrong, but the court says that it's fine, there's no problem with that.

Now, that on this definition would not be a constitutional crisis, fine, but that would be a constitutional harm, presumably. And so one question I have is, are constitutional crises always the worst thing that can happen in a constitutional system or, or could you imagine a situation where you've avoided a constitutional crisis, but in the process you've accepted a constitutional harm and that harm is itself worse than the constitutional crisis itself?

Noah Feldman: Oh, there can be some harms that are so awful that you've preserved the Constitution, but it's not worth having the Constitution in the first place. You know, the extreme case is a kind of Nazi court system that says, well, if we stand up to Adolf Hitler, we won't have a rule of law. So we're just gonna keep on adjudicating cases in private law and not really worry about the destruction of the entire public law system. Yeah, that's, that's worse 'cause the system is fundamentally immoral.

But let me be as clear as I can be in saying that in the universal injunctions case that's gotten so much attention, that is not what happened. The majority, let's start with, are making a decision that they think is right on the legal merits. And, and this is the thing that basically the commentary is pretending it doesn't know, even though every single one of us knows it very well, an issue on which just a two years ago, reasonable centrist liberal lawyers associated with the Biden administration agreed had gone too far.

Now let me give you a proof of this. Elizabeth Prelogar, who was Biden's solicitor general, solicitor general of the United States came and taught very successfully at Harvard Law School this past year, and I had the privilege of being on a panel with her. The topic was things about which I've changed my mind.

And the former solicitor general used as her example and I, I know this was publicly reported cause I saw a newspaper article about it subsequently, and there may even be a recording of the whole thing, I think there actually is. So someone can go in and watch it, used as her example, the universal injunction.

She said, well, when I first, you know, came into office. I thought universal injunctions, they made a lot of sense. You know, judges were using 'em against Donald Trump. But after several years as solicitor general of the United States, I changed my mind and started to think that they're a problem. And, you know, she's the epitome of the reasonable liberal legal establishment. And she was not by any means alone.

I mean, when a universal injunction was used to block Joe Biden's loan forgiveness, student loan forgiveness program, lots of liberals were outraged. The fact that there's like a single federal district judge in one spot in Texas where there's only one judge there, so you don't even have to worry about the, the lottery of which judge you get. You just go there and you get him and he decides for you. This was constantly being cited by liberal commentators as one of the things that was wrong with universal injunctions.

Now I wanna pause and also say I myself, kind of like universal injunctions. I think the court's 6-3 decision is wrong on the merits and I'll, I'm happy to say why. However, I know for sure that the six conservative justices who signed it all think that universal injunction go way too far. I think that under other conditions, at least one of the other justices, Justice Kagan might have been open to joining that point of view.

And what's more, I think we have to remember that universal injunctions as a popular phenomenon are really a product of the first Trump administration. They’re something new. And so the idea that you can't have the rule of law without universal injunctions is just flatly not true. We had the rule of law before this period of time ago.

Now, last point here, and then we can go even deeper into this, there's a lot more to say. Of course, it's true that given that Trump has been walking around errantly and outrageously violating the law, that the loss of the tool of the universal injunction is a win for Trump in the short and medium term. Of, of course, it's a win for him.

It's not the kind of win that we should treat as an automatic defeat for the courts because eliminating your universal injunctions gives the Supreme Court much more direct power over when to be in confrontation with the Trump administration. It allows really the chief justice, as you know with Justice Barrett, the swing vote on the court, to control when and whether there will be a direct confrontation with the Trump administration on a wide range of issues.

And if you think as I do that, the chief justice and the other justices are like the chairman of the Joint Chiefs of Staff, you know, they're, they're generals in an army fighting a war, a war for the rule of law., what the universal injunctions rule says is a bunch of battlefield colonels, the district judges can't choose where we're gonna make our grandstand and be engaged in a win you know, win, lose, win or lose fight for, of nearly existential variety. We are the generals. We wanna make that judgment.

And I think to that extent, there is some benefit in the outcome here. Again, despite the fact that I think that Justice Barrett's opinion is flatly wrong, and I'm happy to say why.

Alan Rozenshtein: Okay, let's get into the case, right? So first, before we get into the universal injunctions part, just remind us what are these, what are the parts of this case? Because again, I do think this has been pretty badly misreported in a lot of places. So what are the, what are the parts of the case and how do the, the votes kind of lay out there?

Noah Feldman: The case started with the outrageous and obviously unconstitutional and morally repugnant Trump administration executive order purporting to say that if you're born in the United States and your parents aren't citizens, you don't become a citizen, you don't have birthright citizenship.

And very quickly the federal district court issued a universal injunction saying you can't enforce this anywhere 'cause it's obviously wrong. And then that got brought to the Supreme Court and the Supreme Court being a court, instead of addressing the merits of that issue and saying, we agree or we don't agree, addressed instead the procedural question of whether the lower federal court that issued this uni-, universal injunction had the right to do so.

Now this is what court watchers call a terrible vehicle. You would've wanted some much less significant or morally fraught case for the court to say there was no such thing as universal injunction if they were gonna say that. But this is how it happened.

And I mistakenly thought an oral argument that they would find some way to say that although we hate universal injunctions, at least this Trump order can't go into effect. I was too optimistic about that. The justices were willing to go through and say it. Now, how did they do it?

Well, the majority opinion by Justice Barrett took what I would call an originalist approach to interpreting the relevant statute. And that's already weird because originalism is usually a philosophy you use to interpret if you're a conservative, to interpret the constitution not to interpret a statute that's supposed to be textualism if you're a conservative. So I wanna flag that as one of the first really embarrassing things about this opinion from the standpoint of the justices.

But basically what the, what the court said was the Judiciary Act of 1789, this incredibly important statute. One of the first things that the very first Congress did when they came into you know, they came into session after the Constitution was ratified. This law confers certain authorities on the federal courts. In fact, this law also created the federal district courts.

And the court said, Supreme Court said, now the only powers to issue injunctions that they got were the powers available to courts of equity in the United Kingdom at that time. Because the court said, if we wanna understand what were the powers of equity, that's the key word of this case, equity. What were the powers of equity? Those powers were just those powers that equity courts had in the United Kingdom then and no more.

And on that basis, the court then said, well, there was no such thing as a universal injunction at the time, which is itself somewhat of a doubtful claim, but we'll really leave that to the weeds. And they said, therefore we conclude that courts do not have this power. And they can't get it unless Congress gives it to them in some new law, which is obviously not gonna be enacted. So to me, at the basic level, that's the way the opinion was structured.

Alan Rozenshtein: So why do you disagree with it on the, the legal merits of it?

Noah Feldman: Yeah.

Alan Rozenshtein: I mean, after all, I mean, universal injunctions are relatively recent. They did not come into vogue that long ago. You would've thought that had they just been lying around, you know, courts would've discovered this power -  

Noah Feldman: Yep.

Alan Rozenshtein: In the last 250 years.

Noah Feldman: Yeah. So let me start with the originalist methodology that the court purported to use here. Originalism is not even a good way to interpret the Constitution, but it's definitely not a good way to interpret a statute.

And as I say, even the conservatives claim that they use textualism instead. Text would tell you here that the powers are the powers of equity. Well, what are the powers of equity? The powers of equity historically have included the basic idea that equity regards as done, that which ought to be done. And that equity exists fundamentally and structurally for the purpose of enabling judges to achieve substantial justice, even when the common law system has failed to deliver that.

That's why we, the courts of equity even existed in, you know, in English law, you know, from the Middle Ages as an alternative to the courts of common law, which were bound by very strict and narrow rules, and the courts of equity were brought into existence in order to rectify the possibility of unjust outcomes.

The result is that courts of equity have historically always been the place for the most judicial innovation with respect to mechanisms for structuring just outcomes. So to give you the most famous example, famous, take two examples, really.

In the early part of the 20th century, the courts developed what was called the labor injunction, which was very unpopular among liberals, very popular then among conservatives, tool that the courts used to order the end of strikes by striking workers. This is before the National Labor Relations Act, deeply controversial. Liberals hated it. Progressives hated it. Conservatives loved it, but it was the court fashioning a new mechanism for adopt for a new problem, namely the problem of strikes.

Then during the Civil Rights Era, the courts innovated in creation and creating what's called the structural injunction. The structural injunction was that a court would take over effectively a whole institution. So the court would say, you know, you are the Atlanta public schools and you have been segregated, and we're ordering you to desegregate, and we don't just trust you to go and do it.

So we are going to maintain our jurisdiction over you. We're gonna have you come back again and again and again, and we're gonna double check and we're gonna keep control over you indefinitely. Now again, this time, this was a new form of equity that was extremely popular among liberals and very unpopular among conservatives, the reverse of the, the so-called labor injunction.

But these were both examples in the 20th century of extremely creative, innovative tools adopted by the legal system to try to resolve novel legal problems. And the universal injunction is a version of that, it's actually much less ambitious than the others because all the universal injunction says is, I'm a federal district court, the president of the United States is before me or the executive branch is before me. I order the executive branch not to do something that I have deemed to be unlawful, and I'm ordering them not to do that, not only in my little area of jurisdiction, but in general. And I can do that because they're before me. They are in fact in front of me. I have jurisdiction over the government, over the executive branch of the government.

Innovative, sure. Radically innovative, no? And very much consistent with the historical nature of the creative aspects of equity. And just to close this argument, I think the most outrageous thing about Justice Barrett's opinion is that it's even bad originalism because equitable power was the power to create new kinds of remedies.

And so even if you really wanted to say, what would the original public meaning of the Judiciary Act have been in 1789 when you said to people, the Judiciary Act gives the powers of equity to the federal district courts. A person who knew what those words meant at the time would have said, oh, that means that this law gives these new federal courts the powers to create new legal remedies going forward as needed to solve problems of injustice, the same way the equity courts have always done in the history of those equity courts, which was by then several hundred year history. So good originalism would've reached the opposite conclusion.

And you can see that that's the case, because what Justice Barrett did is she took flexibility, which is what equity is, and she turned it into a narrow constrained common law limitation, which is the opposite of what equity is for. And that, you know, in a different world where this wasn't about birthright citizenship and Donald Trump and the court standing up to the president or not standing up to the president, we could have had a nice law professorial debate where we could have made the point that this is like the extreme version of the stupidity of originalism.

Alan Rozenshtein: So then how should she have written that argument? So let, let's bracket just for a second, I'll get, I'll get back to this in a moment about whether what you think about universal injunctions on the merits. But let's say one does not like universal injunctions, one has been scarred by the experience.

Let's say you're Justice Kagan, right? Probably the person most sympathetic to this argument that they’re problem, right? She, she was a government lawyer. She, she was Elizabeth Prelogar before, right? She was a solicitor general beforehand, so she gets it. She doesn't have this originalist baggage and let's say it's the middle of the Biden administration and she writes the opinion eliminating or severely curtailing universal injunctions. How does she write that opinion?

Noah Feldman: Well, she could have said, in a way that isn't totally different from the way Justice Kavanaugh wrote in his concurrence, we're the Supreme Court of the United States. That means we're supreme. We're the supreme in the exerc-, in the limitation on what equity powers the lower courts can exercise.

And we are entitled to make a judgment that we, the Supreme Court, is the only court that is capable of ruling for the whole country on equitable matters. So therefore, when a lower court issues an injunction, we are telling them you cannot issue injunctions that bind anybody outside of your narrow jurisdictional area unless we say so.

Note, this would not be saying that it's unlawful for you to do so. Because in class actions, which I hope we'll get a chance to come back to later in our conversation, which are one of the escape hatches that this opinion left in place. When a district court judge, you know, makes judgments in a class action. The district judge is often binding everybody nationally, including people who aren't immediately before his or her court at all.

So the court should not have said, oh, it's just in the nature of federal district courts that they're only in charge of the local folks. They, they couldn't say that, 'cause that's just not the way the law presently operates. But they could have said, it's our job to guide and direct the exercise of equitable powers by lower courts. And so for prudential reasons, we're directing the lower courts not to do this anymore.

Alan Rozenshtein: So, so in other words, just make sure I understand the argument. The best way of limiting the equitable powers of the courts is to do it itself through equitable methodology, which is to say the whole point of equity is this kind of policy balancing. That's literally why it was invented was to get outside of the much more narrow or common law system, equitable balancing, and someone's gotta do it for the courts.

That's obviously the Supreme Court, and we in our wisdom have ta, tallied up, right, the left and the right side. And we've decided that the best balance of that is for only us to be able to do this on a nationwide basis, because of course, we are the highest court. That's, that's the argument. That's how one would wanna.

Noah Feldman: Embrace your power, the court has this power, okay? So embrace your power and say, we want, we wanna do this, but we don't want you to do it lower courts.

Alan Rozenshtein: Okay, so now. When you say that you disagree with this opinion, do you disagree with it primarily on these methodological grounds, or also on the substantive grounds? And if so, how do you square that with this column that you wrote, right? Which I think is a quite full throat defense of what the court is doing in this case.

Noah Feldman: Yeah. So thank you for that. Here's how I would answer that. I think that if I had been sitting on the Supreme Court today

Alan Rozenshtein: And, and who among us does not ask ourselves that question three times a day when we're law professors.

Noah Feldman: Well, you reach a certain age on, on there. You don't wanna actually ask yourself that question anymore. But I'm just, for purposes of the hypothetical. Let's put it this way, when your, when your college classmate, which Justice Jackson is, first person I met freshman year, goes on the court, that's the time when you retired that particular that particular fantasy. One of you made, and it wasn't you so you, you sort of, you take that on board and you move right on.

So I, my own substantive view would have been that right now, at this juncture of the Trump presidency, we actually benefit more from having universal injunctions than not having universal injunctions. It is better to have them than not to have them.

But if then the chief justice had said, as I can imagine, he may have said in some form in chambers, you know, or in the conference look, whatever might be appropriate under normal circumstances we need right now to be able to control the playing field. I would've said, you know what, chief, that's a very good and legitimate point.

And we could solve that by regularizing our emergency docket so that we hear direct appeals of those universal injunction decisions much more efficiently than we have done. We do it in a consistent way, we have principles that we follow, we explain our reasoning 'cause right now the court is doing a very poor job of explaining its reasoning in the emergency docket and the emergency docket's where all the action is.

And I think we should solve the problem that way. And then if I lost, as I would've done, I would've said this is one of those situations where reasonable people can differ about the pragmatic prudential question of what are the best tools for constraining the Trump administration right now?

Alan Rozenshtein: Okay, I will admit that I'm now a little confused because I think the first thing you said in our conversation was that the, the most important thing that the Supreme Court has to do is uphold the rule of law and avoid constitutional crises that it will lose.

But of course universal injunctions, precisely because the Trump administration is so aberrant are both necessary to vindicate rights you just pointed out, but they're the most dangerous for provoking constitutional crises because you're dealing with crazy people. So-

Noah Feldman: You're right.

Alan Rozenshtein: I'm having a lot of trouble squaring these together.

Noah Feldman: No, but so, but that's what I'm saying. You just beautifully stated what I think is the basic policy conflict here that was in front of the Supreme Court. And I'm, I'm doing something and I know it's not popular anymore, I'm saying both views have some merit to them.

My own view under current circumstances is that the court would've done better to say we're leaving universal junctions in place, but we're gonna ride herd on them and Trump administration, if you don't like universal injunctions, you come to us and we will consider it right away.

I would've preferred that. But I understand and respect the alternative view, which could have included the following arguments. It's hard to do it right away. We don't do it very consistently. We're not very good in the emergency docket, and so we're better off avoiding that kind of crisis 'cause we can't actually deliver on that.

And you know, Justice Kavanaugh in his concurrence wrote, he also said, you know, listen, don't worry that we're ending universal injunctions. There's still a bunch of other tools the lower courts can use. And what we, the court need to do is get right on that. And when a low, when enough lower courts say something, we can weigh in. And once we've spoken, our judgment should have precedential weight for all of the courts.

And to, to which my response is, that would be great Justice Kavanaugh if you guys actually started hearing cases rationally and quickly in the emergency docket and actually explained your reasoning, then that might work great. And I recognize that it's hard for the court to do that. They, they haven't been very good at that thus far.

So again, that's why this is like a close issue with reasonable arguments on both sides. I prefer one, but I wrote a column saying this is why the six conservatives did what they did, and this is not one of those cases where they're completely out to lunch.

Alan Rozenshtein: I have to say, Noah, your reasonableness here is very off-putting. I was hoping this, this conversation would go viral on TikTok, but then you had to do your whole thing about, you know–

Noah Feldman: Lots of other unreasonable opinions.

Alan Rozenshtein: Excellent. Excellent.

Noah Feldman: I'm sure we can hit on some of them.

Alan Rozenshtein: Okay, so, so, so what's left actually after this? Because I think that's actually really important to know whether or not. This, this framing of this case as I, I like your marshal metaphor here, right? Of, of, of telling the, the platoon leaders, you, you gotta chill. If we're gonna invade, you know, if we're gonna storm the beaches, we're gonna decide that at headquarters, to the extent that that continues.

I count two, right? You have the class actions and then you have what I think has been extremely under reported here, the viability of universal injunctions in such cases. And I think Barrett was pretty clear about this, where you in fact, do need them to vindicate the rightfully. So just explain what those two are, how they would work in this case, and perhaps how they might not work in other Trump cases, which I think is probably the bigger concern.

Noah Feldman: Yeah. So let's start with the class action. So I know that many listeners are lawyers, you'll forgive me for those who aren't lawyers.

The class action is any case where someone comes to a court and says, I'm not gonna litigate this case only on my own behalf. I wanna litigate on my behalf of myself and everyone else who's similarly situated with respect to this legal problem. And then the court goes through a process called certifying the class where they, I'm oversimplifying widely, determine who are those people out there who are similarly situated? Are you a good representative person to speak on their behalf? You know, are you somehow trying to subvert all of them and so forth and so on? And through this process, the court ultimately certifies a class, and then when it issues rulings, those rulings are binding for the whole class of people, wherever they are in the United States.

So this is a tool that is especially valuable in big damages cases, whether they're mass torts. It's one, one situation where it arises whether they are other kinds of cases that infect affect many, many people in many, many places. And it can also work for constitutional violations that affect lots of different people in lots of different places, similarly.

So what Justice Barrett did was she left to open the possibility that if someone comes to a court and says, look my citizenship rights have been taken away by this birthright citizenship executive order, the court can certify a class of all people similarly situated, everyone else who was just born in the United States and whose parents aren't citizens and who is being denied citizenship by the Trump administration. Certify that class and say, I'm reaching a substantive decision on the merits that the Trump administration decision is wrongful. And all people similarly situated are vindicated by it.

So that will reach the same outcome. It'll take a few more procedural steps, it'll take a little bit longer. In some cases it won't work perfectly 'cause certifying a class is a lot more complicated than I just made it sound, but that could suffice. That I think would've worked reasonably well in this case, going through a few more steps.

It would be, it's harder in circumstances where the fact pattern is very detailed. Like we've seen in a bunch of the Trump deportation cases where law court judges have tried to certify a class and it's a little hard to do 'cause you have to figure out who are people similarly situated to these plaintiffs under these circumstances.

The other option that she talked about was Justice Barrett talked about was the circumstance where states bring lawsuits on behalf of all of their citizens. Now, this is an interesting phenomenon too, but the idea is if a state brings a suit on behalf of all of its citizens and the state wins, the decision would apply now, not just to the party before the case, which is the state, but all of the citizens of that state.

And she left a little ambiguous whether the idea is that every state has to do this, such that there are 50 such lawsuits in front of 50 district court judges, or whether several states could then join the same suit, and then if they do the dis-, the district court judgment could cover all of their citizens. And maybe you could even get all 50 states joining a lawsuit on the grounds that it's got common issues for all of them, in which case you would have almost exactly what a universal injunction would be.

It's a highly technical issue, and she didn't go into it here, but it does seem at least possible that such rulings would effectively work very similarly to universal injunctions, but only in circumstances where a state can bring a lawsuit on behalf of all of its citizens. It has to be a circumstance where the state actually does have the kind of legal interest that the courts recognize that happens to also affect all of its citizens.

So you can imagine that in the case of citizenship, the state says, well, I need to know who's a citizen for all of these purposes. But it wouldn't work for other kinds of individual violations where the state might not have the authority to come in and litigate on behalf of its citizens 'cause it's not automatic that a state can every, always bring a suit on behalf of citizens.

Alan Rozenshtein: So obviously we don't know how those two alternatives will cash out until the Supreme Court tells us, and there are reasons to be optimistic that it will allow such relief in a meaningful way, you can read the Kavanaugh concurrence.

There are also reasons to think that, especially after two decades of narrowing class certification it will be less sympathetic to this. But there does seem to be a trade off, and maybe this is just the trade-off. And trade-offs are trade-offs, they're not dissolvable, that the more that alternative avenues for aggregate relief are available, either the class mechanism or kinda more creative uses of the universal injunction, the more you fall back on the problem of district courts, right. The, the, the corporals in your analogy-

Noah Feldman: Colonels, they're, They're colonels, they're colonel,s. Yeah.

Alan Rozenshtein: They're colonels, fair enough. Fair enough. The, the, the colonels picking fights with the enemy. I mean, maybe this is just the horn of the dilemma. Is that a, is that a fair way to sort of think about how this goes?

Right? You either have to make a choice between how aggressively do you wanna vindicate constitutional rights and potentially how low in the judiciary do you wanna do it versus, you know, how much do you wanna wave the red flag in front of the bull and see what happens?

Noah Feldman: Yeah, I mean, I think that's exactly right. And the two responses are each responses, they're both sensitive to the craziness of our moment and Trump's lawlessness.

One response, call it the KBJ response, you know, Justice Jackson's response is, it's more important than ever to vindicate the rule of law that lower courts be able to stand up and say, you can't do this. And that's why she depicted Justice Barrett's opinion as this abdication of legal responsibility in the face of an imperial executive.

And on the alternative side, you have Justice Barrett's view, which is something like, we by very, our very nature as courts, don't have that kind of grand power and all we can do is bit by bit, try to stand up to the administration and that's how we should go about doing it. And that's why in her rejoinder to Justice Jackson, Justice Barrett said that Justice Jackson had, you know, substituted an imperial judiciary for the imperial executive that she purported to be worried about.

Alan Rozenshtein: Okay, I wanna go back now, now that we've sort of gone through this opinion. I wanna go back to the question of constitutional crisis. I think we have a nice definition of it, but I wanna understand what it means to lose a constitutional crisis. So for the courts to lose, and maybe the courts losing means that America loses, but obviously that's a second question. And I wanna do it by looking at some historical examples, right?

So obviously this is not the first time we've had a potential fight between the executive and the judiciary, lots of kind of marquee moments of this. Some in which you can say that the courts lost pretty squarely, right? You can think of the apocryphal fight I, I think, I think it's apocryphal, Jackson, you know, President Jackson telling Mr. Marshall has his opinion now he can enforce it. You can imagine, well.

Noah Feldman: The quote is apocryphal, but the events are not apocryphal.

Alan Rozenshtein: The, the events is not, but the, the quote is.

Noah Feldman: The, the court held that, you know, what effectively became Indian removal was, was unconsti, was unlawful and unconstitutional, and then the Jackson administration let it happen and indeed facilitated it. So yeah, that happened.

Alan Rozenshtein: Yeah, so that happens. And you can call that a loss for the judiciary.

Other examples, maybe the Nixon White House tapes comes to mind where you had a fight and ultimately the president conceded. You can either imagine other examples where maybe it was kind of–

Noah Feldman: He sort of conceded. By the way, it's worth noticing that. Nixon conceded in that he handed over the tapes, but he didn't hand over 18 and a half minutes of one of the tapes and a whole other tape. I believe, if I'm not mistaken, someone a Watergate expert will, will double check me on this. I think he had, there's actually a whole tape that was missing in addition to the 18 and a half minutes that were missing.

But he then had to resign. And so that looked like a pretty thorough defeat and we're, we're happy, we, on the judiciary side, are happy to count that as a victory of the judiciary, yes.

Alan Rozenshtein: Yes, and in a sense, perhaps it was the political defeat that was the more important victory than technical compliance would've been.

Noah Feldman: Absolutely.

Alan Rozenshtein: And then you have just examples, just to finish the thought examples in the middle. I don't know if the FDR switch in, switch in five, that saved nine. I'm not sure exactly how to count that one as a defeat or a victory or sort of both sides coming to some sort of accommodation.

I'm curious, what sort of outcome would you expect in this situation today, in 2025, were there were a constitutional crisis to come to a head? I mean, obviously who knows, but I'm curious what your gut is.

Noah Feldman: Yeah, I mean, so here's the basic problem, the judiciary, you know, when Alexander Hamilton called it the least dangerous branch, he was trying to convince people not to worry about it too much, and it's primarily the least powerful branch. If the judiciary issues an order for it to get done, it needs the executive branch to enforce the order. No executive enforcement, it will not happen.

The legislature has at least the power of the purse, minimal, though that may be in our current era. You know, the, the judiciary has done a lot to enhance its powers over the years. The legislature has done a lot to give up its powers over the years. So it's, the legislature seems quite weak.

But the legislature does have some formal tools at its disposal if it wants to go after the president, including ultimately impeachment and removal of the president. Judiciary doesn't have any of that. So the real problem is if the judiciary orders the president to do something and he flatly refuses to do it, who's going to make him do it?

And what are the options? Impeachment? Not gonna happen in the current, current political world, you know, and I speak as someone who was involved in the first impeachment process and testified in the, in the hearings and, you know, been there, done that, got the t-shirt. I don't think anyone seriously believes that that's gonna be successful this time under these current political circumstances.

Then there's public embarrassment, seems that Donald Trump is immune to that. There's a contempt order, but someone has to enforce the contempt order. Criminal charges? Not really available by the Supreme Court's own judgment that the president is absolutely immune for official acts performed while in office. Is Congress gonna stand up for the judiciary? Not the current Congress.

So there aren't a lot of good leverage points. So what, what's left? You could have, the financial markets could get spooked. And I will say that the financial markets so far in both Trump administrations have been the single most effective check on Trump's behavior. Trump tends to reverse course when the financial markets express serious concern and displeasure.

But it's a gamble as to whether the financial markets would care that much. They would care a lot if it had to do with property rights. We don't know how much they would care if it appeared that the constitutional crisis was restricted to say the question of the deportation of some non-citizens.

You know, the financial markets might say, oh my goodness, if the courts can't be listened to, then there's no constraint on the president that we don't live in a rule of law system. And in a non-rule of law system, corruption comes in and that fundamentally weakens private incentives to invest.

Or the financial markets might say much more plausibly, well, you know, you could be in a country where the rule of law's not that great. But as long as private law is respected, you know, the investment environment is fine. And so we're not gonna get spooked and we're not gonna, we're not gonna think that it's a selling moment. So very speculative about what might happen.

And then the public could go to the streets. And the question is how much of the public would go to the streets? How long would they stay for and how would our politicians respond to that? And would it be sufficient pressure to get Trump to reconsider? You know, I love to fantasize that we would go to the streets for the rule of law. I know you and I would, I shouldn't speak for you, but I know that I would, and you know, would that matter? Would it, would the outcome be, hard to say?

So in historical terms, I would say such conflicts are rare and they are often costly for the president. But they are potentially winnable by the president. Right now in the aftermath of two failed impeachment attempts, failed criminal charges, and a president in his second term who doesn't care about getting reelected, and I'm sure does not care if JD Vance gets elected. I would say that the prospects for the judiciary winning such a fight are lower than they've been in any other moment in our history.

Alan Rozenshtein: But I wonder if you are defining what the judiciary winning here, a little too narrowly. So what I mean by that is, I fully agree with you that if there were a altercation between the judiciary and Trump, Trump would not back down and the judiciary would lose, right? It would lose in the way that probably.

Noah Feldman: Probably, probably.

Alan Rozenshtein: Right. It would likely lose, and again, it would likely lose in the way that, you know, the judiciary lost during the Civil War and the way that the judiciary, you know, Marshall lost to, to, to Jackson.

But as long as in the short to medium run, there is a political reaction from the democratic process. And you can imagine that happening relatively quickly with the midterms. And then, you know, whatever happens in 2028, you know, you can use this as a way to reinforce that norm, which, which is to say, right, and maybe I'm being too optimistic here, but there are ways in which-

Noah Feldman: You think people are gonna vote differently in the midterms because Donald Trump disobeyed the Supreme Court? You might be right, I hope you're right.

But the reality is that I think the great majority of those people who bothered to vote in midterms already know what, what motivates them. And remember, a lot of Americans will be behind Donald Trump in that conflict inevitably.

Alan Rozenshtein: Let me ask you about the timing of this decision, because I think that has been even among folks who, yep, they read the decision, they, they get it, they understand they're, they're sympathetic to the universal, the problem of universal injunctions.

They look at this and they think, you must be kidding me. Right? You waited until Trump, second term, you waited until this, this most like obvious of constitutional violations. You could have done this at any time during the Biden administration. How fair do you think a critique that is?

Noah Feldman: It's a very fair critique. Justice Barrett would respond to it by saying, not my job to worry about the timing. And to be both fair and mean to Justice Barrett simultaneously, I think she thinks her decision is completely principled and has nothing to do with pragmatics or very little to do with pragmatics. That's also mean to her 'cause I don't think it's a very good opinion, as I said.

But if you had the chief justice here, you know in the truth serum, you know were, we're forced upon him, he is very pragmatically concerned with the preservation of the rule of law. Justice Kavanaugh is very pragmatically concerned with the preservation of the rule of law, of the rule of law.

They both see themselves, both of them have worked in, worked in the executive branch. They each think of themselves as attuned to the subtleties of the political back and forth and the dialogue between the different branches of a government.

And I think that they would tell you, we didn't choose this timing. You know, I mean, in the first Trump administration, the injunction was new and seemed to sort of be working. Then in the Biden administration we were like, well, what's sauce for the goose is sauce for the gander? You know, like you used it against one side. Now we're using it against the other side.

Now comes the second Trump administration, and we're like, enough already the situation is just becoming unsupportable. And I'm sure they would've preferred to have some other facts pattern, but this is the fact pattern that came to the court and ultimately they made the judgment that they had to bite the bullet.

Again, they may have been wrong about that. I think they probably were wrong about that, but I think that's the rational basis. Lemme give you just another example of where I think the chief justice was dead wrong in a pragmatic decision, but I see why he decided what he did. And that was the decision about Trump's immunity from criminal charges for official acts in his first term.

I believe very firmly that the chief justice thought when he issued that opinion, which he wrote himself, that he was saving us from a world where Joe Biden prosecuted Donald Trump, then Donald Trump would come into office and prosecute Joe Biden. And we would become more and more of a banana republic where each new administration would prosecute the one that came before.

And I think that the chief thought that it was worth drawing the line and saying that, you know, Donald Trump could not be criminally prosecuted for official acts. And I think he thought he was being, I think the chief thought he was being a statesman in that case. And I think it was the wrong decision 'cause I think it's enabled Trump to be far more counter to law in his, in this term that he got reelected to.

But I get that the chief, my interpretation is that the chief justice is really trying to preserve the system as a whole and trying to preserve the judiciary. And in a sense, he was also trying to avoid a situation where the courts become tools for politicians to punish each other.

Alan Rozenshtein: In your piece, you argue that while we're all focusing on the injunctions case and whatever, we can have that debate, the court is actually sticking up for the rule of law in a bunch of other situations that there's plenty of lower court action that has been averse to the Trump administration, where the Supreme Court is leaving those in place.

And so I, I'm curious how you score that, right? Because there are also cases where the Supreme Court, I think the, the, the, the D.V.D. case, this is involving the individuals who are fighting deportation to South Sudan, where the court has in fact come in, in an unsigned opinion, you know, lifted the district court relief, and that we're not talking about a universal injunction that's like the some number of guys that are trying to avoid going to South Sudan. So I'm, I'm curious, when you look at all of these cases, how you, how you balance those out.

Noah Feldman: So overall I would give the court a, a B+. And by B+, I don't mean a great-

Alan Rozenshtein: Is that a Harvard B+ or a real B+? That's the question.

Noah Feldman: No, I'm talking about a real B+. Not a great. Not in, you know, in grade inflation. For those who, who haven't been exposed to extreme grade inflation in your lives and you're lucky. In grade inflation, a B+ becomes a, you didn't do that well, grade. That's not how I'm giving it. I'm giving it as a, you know, real old-fashioned B+.

And the reason is that on a whole range of very important issues, the court has said to the Trump administration, you've broken the rules. The lower courts have said, you've broken the rules. You actually have to listen to those court orders, obey the court orders, and do, you can appeal it to us. But we think it's more likely than not that you've broken the rules, or at least you haven't shown that it's more likely that you haven't broken the rules.

And that sent a message throughout the whole system that Trump could do the radical things that DOGE was doing that were lawful, but he couldn't do the things that were unlawful. And that's been very important to the progress of the closing of agencies, the kind of the wrecking ball approach that was characteristic of the first part of the Trump administration.

And also very important in the deportation context, in the context of the people who were grabbed up supposedly pursuant to the Alien Enemies Act and deported without due process, who it's worth saying most of whom are still in El Salvador in a notoriously terrible prison, but at least one of whom has been brought back. And others of whom have some prospect of receiving due process under some set of circumstance. So that's why they get, you know, some, some meaningful amount of points and credit. I think they've stood up as much as is appropriate in those cases.

In the other cases, there has always been some technical reason. Which it's possible to ascertain, and like you, Alan, if I heard you be saying this, I'm beside myself, that the court decides these kinds of things without explanation. I'm beside myself. I think it's bordering on a fundamental violation of the principles of due process. You know, you need to explain yourself, especially when these are repeat players and they're doing it again and, and again.

However, in the case that you were describing, there is a federal statute that does say that you can't issue a, effectively, a class-wide injunction on this provision of immigration law, and the judge did that. I sympathized with the judge and the judge had a whole theory about why it was okay and maybe the judge was right about that.

But I can see the Supreme Court's technical reasoning there. Ditto in the one or two other cases where, which I've seen where the court has, has reversed lower court holds on Trump action. There's always some technical reason. And I see that as the court's conservative saying, we're still gonna be good technical lawyers, we're gonna follow the rules. When Trump violates the rules, we're gonna go against him when he follows the rules, you know? Or is within the rules. We're gonna allow him to do what he wants to do.

And I just wanna say something really important about that, and I think Justice Barrett is really the crucial figure here. Justice Barrett, you know, there's been a lot of talk about, oh, you know, conserves were very angry at Justice Barrett. They said she was turning into some kind of a soft liberal, and then hopeful liberals were like, oh, maybe she is turning into a soft liberal.

This is all complete madness. Justice Barrett is a serious, committed conservative who fundamentally believes in following the rules. She was a clerk to Justice Scalia. Justice Scalia famously said, the rule of law is a law of rules, which is a very catchy phrase, and it means a lot of things, but one of the things it means is you know, you have the rule of law if the courts follow the rules all the time, including when it produces bad outcomes.

And Justice Barrett believes in following the rules. And so sometimes because she thinks the administration's violated the rules, she's gonna hold against the administration, even if maybe she liked what they did. Other times, even if she maybe doesn't like what they do, if it follows with, follows the rules, she's gonna uphold it. And that's where our fate is right now.

Our fate as a constitutional republic is in the hands of judges, almost all Federalist Society veterans, and recommended by and chosen by the Federalist Society, who actually believe in following the rules. And you know, Trump hates that and he hates them, which is why he's turned on the Federalist Society 'cause he thinks, well, wait a minute we, we picked you judges so that you would do what I said.

And the judges are like, no, we, we said, we believe in following the rules. That's what the Federalist Society believes in. Now, the Federalist Society is like all other institutions, it can evolve over time and maybe over time it'll be less committed to following the rules. But for now, the Federalist Society as a whole, and it's certainly its former members who are in the judiciary seem to be committed to that.

So we have to be willing to take the defeats when there is a technical reason to justify that. I haven't yet seen a case where the Supreme Court seemed in the emergency docket to be deferring to the Trump administration cause it kind of liked them or it kind of liked the policy objectives that they were aiming for.

If that starts to happen, I'll change my tune and you know, I'll lower the court's grades, but right now I think they're actually doing decently. And again, this goes back to what we talked about earlier. That's, although I might well have ruled in the liberal way in each of these cases, if someone had given me the chance to do so, and I, I would've certainly said I thought that was the right outcome in a lot of these cases.

But there are still people on the court who care about the technical rules. And as long as they apply those technical rules against Trump, some of the time, a reasonable amount of the time, we've still got the rule of law and it's still being protected.

Alan Rozenshtein: I think that's a good place to wrap up. Thank you, Noah for coming on the show.

Noah Feldman: Thanks for having me.

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