Bulwark Takes: SCOTUS Just Blew Up Nationwide Injunctions
Release Date: June 27, 2025
Hosts: Sam Stein and Lee Litman
Introduction
In this episode of Bulwark Takes, Sam Stein engages in a deep dive discussion with Lee Litman, a law professor at the University of Michigan and author of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The focus is on the Supreme Court’s recent decision impacting nationwide injunctions, specifically in the context of the Berlin birthright citizenship case.
Background of the Supreme Court Decision
Sam Stein kicks off the conversation by outlining the Supreme Court’s 6-3 decision concerning nationwide injunctions related to birthright citizenship:
"[...] the Supreme Court came down six to three, not necessarily in the merits of birthright citizenship, but on the issue of nationwide injunctions ruling that lower courts cannot, under some many circumstances, issue nationwide injunctions."
[01:43]
Lee Litman confirms the accuracy of this summary:
"Yes, I think that's a fair general summary."
[01:43]
Understanding Nationwide Injunctions
The discussion delves into the nature and history of nationwide injunctions.
Lee Litman explains:
"Why we have nationwide injunctions is sometimes blocking a whole policy is basically the only way you can fully remedy the harm to the plaintiffs that have challenged it."
[03:15]
She further elaborates on the origins:
"Scholars on nationwide injunctions locate them originating in the early 1900s."
[03:15]
Sam Stein seeks to clarify the necessity and implications:
"It's sometimes important to block them nationwide to prevent irreparable harm."
[03:42]
Lee Litman adds context regarding practical applications:
"Some states have challenged the policy... in order for us to administer a variety of social services, we need a universal, easy to apply uniform rule of citizenship."
[04:10]
Supreme Court’s Ruling and Its Implications
The Supreme Court has granted the federal government 30 days to establish procedures for implementing the executive order on birthright citizenship, delaying potential nationwide injunctions.
Lee Litman summarizes the ruling:
"They've given 30 days for the federal government to come up with a set of procedures or process for how they plan to implement the executive order."
[06:25]
Sam Stein probes the next steps:
"In the interim is the expectation that these lawsuits... will then go up the chain of courts."
[07:19]
Lee Litman anticipates ensuing chaos:
"I expect there to be a lot of litigation and a lot of chaos as lower courts try to apply these new legal standards."
[11:44]
Reactions from the Supreme Court Justices
The episode highlights the dissenting opinions and responses from the justices, emphasizing the ideological divide.
Lee Litman discusses Justice Sotomayor’s dissent:
"Justice Sotomayor did in her dissent. So she really begins her dissent by reaffirming the concept of birthright citizenship."
[06:06]
Sam Stein references Justice Barrett’s response to Justice Jackson:
"Amy Coney Barrett responded by saying, you want a sort of a runaway judiciary in response to a runaway presidency."
[15:26]
Lee Litman analyzes the interaction:
"She accuses Justice Jackson of wanting an imperial judiciary... we observe only this jab."
[15:21]
Future Implications and Broader Consequences
The conversation turns to the long-term effects of the ruling on civil rights litigation and the balance of power among government branches.
Lee Litman expresses concerns:
"It's really eliminating the most effective tool that lower courts had for reining in the Trump administration and blocking some of their illegal policies."
[16:42]
She also touches on the historical irony:
"There is a lot of irony to the fact that the Biden administration was subject to numerous nationwide injunctions."
[16:42]
Sam Stein reflects on constitutional stability:
"I'm not sure we are going to end up in a somewhat similar place... It is in a little worse shape today than it was yesterday."
[22:45]
Lee Litman concludes with a sobering outlook:
"I wouldn't put this as the thing that puts us over the ledge into the constitutional crisis. I kind of think we were already there and this is just an added bit that makes our situation more difficult."
[23:14]
Conclusion
Sam Stein wraps up the episode by acknowledging the complex interplay between the legislative, executive, and judicial branches, emphasizing the challenges posed by the Supreme Court’s decision on nationwide injunctions. He also commends Lee Litman and her work:
"Leah, thank you so much. I'm going to get your book again."
[23:01]
This episode provides a comprehensive analysis of the Supreme Court's recent ruling on nationwide injunctions, its immediate impact on birthright citizenship, and the broader implications for civil rights and the balance of power within the U.S. government. Through insightful dialogue, Stein and Litman shed light on the evolving legal landscape and its potential future trajectory.