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

Jul 22, 2025

Noah Feldman, Felix Frankfurter Professor of Law at Harvard, dives deep into the Supreme Court's recent decision limiting universal injunctions, which emerged from a Trump-era case on birthright citizenship. He argues that the Court may be playing a strategic long game, aiming to safeguard the rule of law and avoid direct confrontations with the executive branch. Feldman critiques Justice Barrett's majority opinion for its flawed use of originalism and explores alternative legal avenues like class actions, raising intriguing questions about the judiciary's role in today's political landscape.

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INSIGHT

Supreme Court's Long Game

The Supreme Court’s main goal during the Trump era is to protect the rule of law and avoid losing a constitutional crisis with the executive branch.
Limiting universal injunctions helps the Court control when it confronts the administration, preventing premature conflicts.

INSIGHT

Originalism Limits Universal Injunctions

The Court used originalism to argue that universal injunctions lack historical basis, limiting equitable powers to those in 1789 UK.
This restricts courts from broadly stopping executive actions unless Congress explicitly authorizes it.

INSIGHT

Equity's Role in Judicial Innovation

Equity empowers courts to innovate remedies to achieve justice, adapting to new problems historically.
Justice Barrett's narrowing of equity limits contradicts equity's flexible, purpose-driven nature.

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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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