Understanding Constitutional Crises and Harms

Alan Rozenshtein, Senior Editor at Lawfare and Associate Professor of Law at the University of Minnesota, speaks with Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, about the Supreme Court's recent decision to greatly limit the practice of universal injunctions. The ruling came in a case involving a Trump administration executive order on birthright citizenship, and while many commentators have viewed the decision as a dangerous loss for the rule of law, Noah argues that the Court might be playing a strategic "long game."

Alan and Noah discuss Noah's central thesis: that the Supreme Court's primary job in the Trump era is to protect the rule of law by avoiding a direct constitutional crisis with the executive branch that the judiciary is likely to lose. From this perspective, eliminating universal injunctions—a tool that allows a single district judge to start a major fight—is a way for the Court to control when and where it confronts the administration. They also address the legal merits of Justice Barrett's majority opinion, which Noah argues was a flawed use of originalism that misinterpreted the flexible, problem-solving nature of equity. Finally, they explore the legal avenues for relief that remain, such as class actions, and consider what it means for the judiciary to truly "win" or "lose" a confrontation with a president who is undeterred by political norms.

Note that this discussion was recorded in early July, before a lower court certified a class action in the birthright citizenship litigation and before the Supreme Court's recent unsigned opinion allowing the Trump administration to begin mass firings at the Department of Education, which Noah has since criticized.

Mentioned in this episode:

• "The Supreme Court’s Majority Is Playing the Long Game,” by Noah Feldman in Bloomberg Opinion
• "The Supreme Court’s Silent Opinions Undermine Its Legitimacy,” by Noah Feldman in Bloomberg Opinion

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