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judiciary
The Supreme Court Has Effectively Resuscitated Dred Scott
By choosing to ban nationwide injunctions in response to a case challenging Trump’s order to end birthright citizenship, the court’s conservative majority put all of our rights at risk.
Jul 02, 2025
The 14th Amendment guarantees that all children born in the United States are citizens. It aimed to undo the notorious Dred Scott ruling, which held that some people born here—Black people, to be precise, free and formerly enslaved—nevertheless were not citizens. As you’ll recall, just hours into his term, President Donald Trump signed an executive order purporting to end birthright citizenship. The order was, and remains, unconstitutional.
The Supreme Court chose this case, out of all the possible cases, to strip judges of a key power used to stop illegal actions.
Instead of ruling on the merits in Trump v. CASA, the justices chose to rule on the legality of universal injunctions, among the strongest tools that lower courts use to block flagrantly unconstitutional policies like these from taking effect while cases play out. These injunctions grant relief not only to the person who brought a lawsuit, but to all affected by the ruling. Instead of every soon-to-be parent affected by the order having to bring a lawsuit to secure citizenship for their baby, only one litigant would have to obtain a universal injunction—guaranteeing relief from an unconstitutional order for all. The six justices of the conservative supermajority decided that such rulings go beyond the power of federal courts when they’re not necessary to give the plaintiffs themselves full protection of the law.
While this Supreme Court may be frozen in 1789, we must think anew and act to ensure the protection of birthright citizenship and so many other constitutionally recognized rights.
By allowing Trump’s order to partially take effect in 30 days absent further action by the lower courts, the court has effectively resuscitated Dred Scott, at least for some people, at least for now.
In her dissent, Justice Sonia Sotomayor warned, “No right is safe in the new legal regime the court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”
We at the Brennan Center are still analyzing the ruling. It’s vague at key points. In some respects, it is as great a gift to executive overreach as last summer’s ruling on presidential immunity. On the other hand, alternative avenues to obtain nationwide relief from illegal conduct remain.
Let me share several thoughts.
First, and most obviously: This is one more example of the Supreme Court enabling executive overreach at a time when checks and balances are profoundly strained.
These nationwide injunctions pose complex issues. I have warned about the damage a single judge can do with a gavel and a grudge. Nationwide injunctions blocked key Biden administration initiatives, such as on student loan relief and climate change, and many of Trump’s actions in his first term. Oddly, the Supreme Court had never before ruled on the practice, despite many opportunities to do so during the Biden administration. One could have imagined a decision now that set out sharp limits. Instead, with this decision, these justices have once again gone much further than the case required.
Second, the court purports to give litigants other ways to broadly challenge illegal actions—but these may be flimsy, even sneaky. People can file a class action lawsuit, for example. Maybe. I was a class action plaintiffs lawyer before I came to work at the Brennan Center. Those lawsuits are cumbersome, expensive, and slow, and they must overcome barriers erected by very conservative judges (and the business lobbyists who backed them for their jobs).
Then there is the question of which judges have had their power stripped. The ruling seems to apply only to lower court judges... but does it? For example, if the administration were to defy the Supreme Court, would the court itself still have the legal authority to enforce its own orders to protect everyone affected? That would, after all, require a universal injunction.
Justice Brett Kavanaugh wrote a concurring opinion, which sought to reassure: Of course the Supreme Court could still take bold action when needed. Some read that as reassuring. Others note that he is just one justice. There’s a reason this appears in a concurring opinion. Kavanaugh may not have been able to bring any of his supermajority colleagues along with him. Even if true, as Ruth Marcus explained in The New Yorker, that means the court “sided with Donald Trump over the judiciary.”
All of which brings us to the third point: The courts, alone, will not save us. In banning universal injunctions, the Supreme Court relied on an originalist interpretation of the Judiciary Act of 1789. (Sotomayor noted that it amounted to “freezing in amber the precise remedies available.”)
Congress, in other words, wrote the law being interpreted—and could write a new law to clarify what powers federal judges hold when confronted by executive branch lawlessness.
Presidents of both parties have pushed to expand their power, though none as brazenly as Trump. And Congress has settled into torpor, failing over and over to perform its constitutional role.
After this period of institutional demolition will come a moment of reform and renewal. When it does, we should ensure that remedies make it possible to hold lawless presidents accountable, along with addressing issues such as campaign finance and voting rights.
While this Supreme Court may be frozen in 1789, we must think anew and act to ensure the protection of birthright citizenship and so many other constitutionally recognized rights. In the meantime, we must give our full support to efforts to hold this administration accountable through the courts, using any and every tool that remains.
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American Bar Association Sues to End Trump 'Law Firm Intimidation Policy'
"There has never been a more urgent time for the ABA to defend its members, our profession and the rule of law itself," said the group's president.
Jun 16, 2025
The American Bar Association sued U.S. President Donald Trump's administration in a Washington, D.C. federal court on Monday over what the ABA called his "law firm intimidation policy."
"Since taking office earlier this year, President Trump has used the vast powers of the executive branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the president does not like," states the ABA complaint, which names various entities and leaders in the administration as defendants.
The document lays out how the administration has carried out this policy using "executive orders designed to severely damage particular law firms and intimidate other firms and lawyers," as well as "'deals' or 'settlements' between the administration and certain law firms in order to avoid such orders or have them rescinded."
Trump's administration has also relied on "other related executive orders, letters, and memoranda," and "public statements by the president and his administration publicizing the objectives of the law firm intimidation policy," the complaint details. "The president's attacks on law firms through the faw firm orders are thus not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the president or his administration in court, or from even speaking publicly in support of policies or causes that the president does not like."
The filing stresses that "without skilled lawyers to bring and argue cases—and to do so by advancing the interests of their clients without fear of reprisal from the government—the judiciary cannot function as a meaningful check on executive overreach."
Some firms are already fighting back against Trump's attacks, which the ABA called "unprecedented and uniquely dangerous to the rule of law." As Bloomberg detailed Monday:
Three firms hit with executive orders—Perkins Coie, Jenner & Block, and WilmerHale—later obtained permanent injunctions against the executive orders, with judges striking them down as unconstitutional. Susman has obtained a temporary injunction and is awaiting a ruling on a request for a final decision.
Nine other firms have pledged a total of nearly $1 billion in free legal services as part of deals to avoid similar orders. They committed to working on causes championed by Trump, including combating antisemitism, assisting veterans, and ensuring fairness" in the justice system.
After powerhouse firm Paul Weiss struck a deal with Trump, eight others—A&O Shearman, Cadwalader, Kirkland & Ellis, Latham & Watkins, Milbank, Simpson Thacher, Skadden Arps, and Wilkie Farr—followed suit. The firms have faced intense criticism for the agreements.
Meanwhile, as the ABA filing points out, "public reporting demonstrates that the chill on the legal profession—and particularly on 'Big Law' firms—has not been relieved by these favorable rulings. 504 law firms filed an amicus brief in support of Perkins' motion for summary judgment. As was widely reported, though, none of the top 25 U.S. law firms by revenue signed the brief, and fewer than 10 of the top 100 firms (the AmLaw 100) signed."
"By the time Susman filed its motion for summary judgment, four different judges had enjoined executive orders targeting law firms as likely unconstitutional," the complaint adds. "Yet still, fewer than 10 of the AmLaw 100 firms signed the brief in support of Susman, and none of the top 25 firms did."
The complaint also highlights other impacts, including that "many attorneys are no longer willing to take on representations that would require suing the federal government," and "others have dropped ongoing representations; ended their participation in
contemplated cases; or declined representations—even of clients with whom they had longstanding prior attorney-client relationships—not because the merits of the case were weak or the attorney had some substantive objection to taking the case, but because the representation was deemed too likely to result in severe retaliation from the president."
"Public interest attorneys who rely on their partnership with and representation by law firms—particularly in time- and resource-intensive pro bono cases—have not brought cases that they otherwise would have because their choice of counsel has been compromised," the filing says. "Still others have abstained from expression related to their prior representations that they would otherwise have engaged in, or even removed existing writings related to past representations from the public sphere."
"And those attorneys who do intend to proceed with work disfavored by the president now do so under the objective threat of potentially devastating retaliation pursuant to the policy, with all the severe harm, expense, and distraction that accompany such threat," the document warns. "All such harms are already happening; are ongoing; and will continue in the absence of relief from the court."
While the White House hasn't yet commented on ABA v. Executive Office of the President et al., William R. Bay, president of the association, said in a Monday statement that "this is the time to stand up, speak out and seek relief from our courts... There has never been a more urgent time for the ABA to defend its members, our profession, and the rule of law itself."
This is not the legal group's only case against the administration. Bloomberg noted that "the ABA earlier this year laid off one-third of its workforce after the Trump administration cut $69 million of its grant funding. The organization is waging another suit against the Justice Department as it tries to cut another $3.2 million in federal grants."
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After Trump Deportation Attempt, Migrants and ICE Agents Stranded in Shipping Container in Djibouti
"This is a situation the government both created and can remedy if it so chooses," said a lawyer for the migrants.
Jun 06, 2025
The Trump administration could have sent eight migrants with deportation orders and the immigration agents who were escorting them to a facility in the U.S. after a federal judge recently barred officials from deporting them to war-torn South Sudan, where they could face persecution or torture.
Instead the administration sent them to U.S. Naval Base Camp Lemonnier in the East African country of Djibouti, where a court filing on Thursday said they face illness, the threat of rocket fire from nearby Yemen, temperatures that soar past 100°F daily, and rancid smoke from nearby burn pits where human waste and trash are incinerated.
Tricia McLaughlin, a spokesperson for the U.S. Department of Homeland Security, blamed U.S. District Judge Brian Murphy for "stranding" the 13 Immigration and Customs Enforcement (ICE) agents and eight detainees at the naval base, where they have been housed since late May in a metal shipping container converted into a conference room with just six bunk beds.
The administration has frequently attacked judges for issuing rulings that have interfered with President Donald Trump's ability to carry out his anti-immigration agenda.
But Aaron Reichlin-Melnick, senior fellow at the American Immigration Council, pointed to court transcripts that showed the Trump administration had requested the migrants and agents be sent to Camp Lemonnier.
"No one asked them to do and no court order forces them to do it," said Reichlin-Melnick Thursday.
In a court transcript, Deputy Assistant Attorney General Drew Ensign told Murphy that "bringing them back would be a much broader remedy than necessary" and suggested the detainees could have a "reasonable fear interview where they are" in Djibouti to determine if they had a credible fear of persecution or torture if they were deported. Murphy had instructed officials to arrange reasonable fear interviews when he ruled in May that they could not be sent to South Sudan.
"The judge did NOT require that anyone be 'stranded' anywhere," said Reichlin-Melnick. "In fact, it was the Trump administration that asked the judge for permission to hold the men in Djibouti! ICE could literally bring the men to any other U.S. base (or back to the U.S.) at any time!"
Murphy's ruling in May interrupted a deportation flight carrying the migrants—who have been convicted of crimes and are from Cuba, Laos, Mexico, Myanmar, South Sudan, and Vietnam—to South Sudan.
The judge said the flight violated his previous order from April 18, which prohibited the administration from sending immigrants to third countries without providing them a chance to request humanitarian protections. That ruling was underpinned by the Convention Against Torture, which bars governments from deporting people to countries where they could be face torture.
"The judge gave the government a choice as to how to remedy the government's violation of the court's order—either return them and comply with the order in the United States or comply with the order overseas," Trina Realmuto, a lawyer for the immigrants, told The Intercept. "The government opted to comply overseas after telling the court that they had the ability to do so. This is a situation the government both created and can remedy if it so chooses."
The court filing on Thursday by Mellissa Harper of the Office of Refugee Resettlement described how within 72 hours of arriving at the makeshift detention facility in Djibouti, the agents and migrants began to suffer from symptoms for bacterial respiratory infections, including "coughing, difficulty breathing, fever, and achy joints."
The filing explained that they are unable to get tested to determine what the illness is, and there is only a small supply of inhalers, Tylenol, eye drops, and nasal spray to treat the symptoms.
Based on what was described, Politico's Kyle Cheney asked: "Why is the Trump administration forcing them to stay there?"
"ICE's claims of difficulties here are ENTIRELY self-inflicted," said Reichlin-Melnick. "THEY asked the judge for permission to hold the men in Djibouti. The plaintiffs wanted the men brought back here. I have sympathy for the low-level officers stuck there, but it's ALL their bosses' fault."
The administration has asked the U.S. Supreme Court to stay Murphy's order requiring screenings for the migrants, claiming that ruling violated officials' authority to deport immigrants to third countries if their home countries won't take them back.
But in the case of at least one of the migrants, Jesus Munoz Gutierrez, the government of his home country of Mexico was not informed that he had been sent to Djibouti.
Mexican President Claudia Sheinbaum suggested last month that Gutierrez could be repatriated if U.S. followed protocols to send him back to Mexico.
Setareh Ghandehari, advocacy director for Detention Watch Network, told Newsweek that the administration's insistence on detaining the migrants in a shipping container at Camp Lemonniere is "the latest move in Trump's shocking expansion of third country deportations."
"By expelling people out of sight and out of mind to remote prisons and war-torn, unstable countries," said Ghandehari, "the Trump regime is attempting to normalize the offshoring of immigration detention and third country deportations as a new and expanded model of incarceration and deportation."
Ghandehari added that "the use of shipping containers to detain people is heinous and enraging—and coupled with the extreme heat, disease, and threats of rocket attacks in Djibouti, can be deadly."
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