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

Release Date: July 22, 2025
Podcast: The Lawfare Podcast
Host/Author: The Lawfare Institute

Introduction

In this episode of The Lawfare Podcast, Alan Rosenstein engages in a profound discussion with Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School. The conversation delves into the Supreme Court's recent decision to restrict universal injunctions, its implications for the rule of law, and the broader context of constitutional crises, particularly in relation to the Trump administration's actions.

The Supreme Court's Decision on Universal Injunctions

Nehemiah Feldman's Perspective:

Noah Feldman begins by contextualizing the Supreme Court's decision to limit the use of universal injunctions. He suggests that while he might have previously ruled in favor of more liberal outcomes in similar cases, the presence of justices who emphasize technical legal rules ensures the protection of the rule of law.

• “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.” [00:37]

Justice Amy Coney Barrett's Inquiry:

Justice Barrett challenges Feldman’s interpretation, questioning whether the Supreme Court is strategically avoiding a constitutional crisis or inadvertently contributing to one.

• “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.” [02:19]

Understanding Constitutional Crises

Defining a Constitutional Crisis:

Feldman defines a constitutional crisis as a situation where two branches of government are in uncompromising conflict without clear rules to resolve the dispute, leading to uncertainty about the next steps.

• “I define it all the time... where two different branches of the federal government... are each insisting on their position in an incompatible way... and where the rules as written do not tell you what's supposed to happen.” [06:47]

Justice Barrett's Counterpoint:

Barrett distinguishes between constitutional crises and constitutional harms, suggesting that not all constitutional violations escalate to crises.

• “There are different kinds of constitutional harms that are not themselves constitutional crises.” [08:18]

The High-Level Strategy of the Supreme Court

Feldman's Analysis:

Feldman asserts that the Supreme Court's paramount duty is to uphold the rule of law and prevent scenarios where the executive branch, exemplified by Trump, might disregard court orders, potentially leading to a constitutional crisis.

• “The single most important job the Supreme Court has right now... is to protect the rule of law.” [04:07]

He emphasizes a two-pronged approach:

1. Avoiding Direct Confrontation: Preventing the escalation of conflicts between the judiciary and the executive.
2. Strategic Engagement: Choosing battles where the Court's authority is strongest and least likely to be undermined.

Critique of the Majority Opinion

Originalism vs. Equity:

Feldman criticizes the Court's majority opinion, authored by Justice Barrett, for misapplying originalist interpretation to statutes concerning equitable powers. He argues that equity has historically been a flexible tool for achieving justice, contrary to the Court's narrow interpretation.

• “Good originalism would have reached the opposite conclusion... She took flexibility, which is what equity is, and she turned it into a narrow, constrained common law limitation.” [16:25]

He contends that the Court's decision restricts judicial innovation and undermines the very essence of equitable remedies.

Alternative Avenues for Relief

Class Actions and State Lawsuits:

Barrett acknowledges alternatives to universal injunctions, such as class actions and lawsuits brought by states on behalf of their citizens. Feldman explains how class actions can achieve similar nationwide effects by representing all individuals similarly affected by a legal issue.

• “The court should not have said that it's unlawful for you to do so, because that's just not the way the law presently operates.” [22:04]

He elaborates on the mechanics of class actions and state-sponsored lawsuits, noting their potential to circumvent the limitations imposed by the ruling against universal injunctions.

Historical Context and Potential Outcomes

Examples of Past Constitutional Crises:

Barrett references historical instances where the judiciary and executive branches clashed, leading to either the judiciary's defeat or a complex stalemate. Feldman adds depth by discussing cases like President Jackson's defiance of Chief Justice Marshall and the Nixon administration's challenges during Watergate.

• “The court held that what effectively became Indian Removal was unlawful and unconstitutional. And then the Jackson administration let it happen and indeed facilitated it.” [41:05]

Current Implications:

Feldman expresses concern about the possibility of future conflicts, especially given the heightened tensions during Trump's administration. He speculates on various outcomes, ranging from financial market reactions to public protests, and assesses the judiciary's potential struggles in enforcing court orders against a determined executive.

Evaluating the Supreme Court's Performance

Grading the Court:

Feldman assigns the Supreme Court a "B plus," acknowledging both its adherence to technical legal principles and its limitations in effectively curbing executive overreach.

• “Overall, I would give the court a B plus... they have stood up as much as is appropriate in those cases.” [51:14]

He appreciates the Court's efforts to enforce legal boundaries while also critiquing its handling of urgent and morally charged cases without sufficient explanations.

Justice Barrett's Role:

Feldman highlights Justice Barrett's commitment to rule of law principles, noting her background with the Federalist Society and her belief in following established legal rules even when outcomes are unfavorable.

• “She was a clerk to Justice Scalia, just as Scalia famously said, the rule of law is a law of rules... she was a serious, committed conservative who fundamentally believes in following the rules.” [51:20]

Conclusion

The conversation wraps up with a mutual acknowledgment of the complexities surrounding the Supreme Court's decisions and their far-reaching implications for American governance. Feldman maintains that while the Court has shown resilience in upholding the rule of law within certain confines, significant challenges remain in preventing potential constitutional crises, especially in the face of executive defiance.

• “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." [29:10]

Justice Barrett concedes the nuanced nature of the debate, recognizing the Court's strategic positioning amidst politically volatile circumstances.

• “But as long as in the short to medium run, there is a political reaction from the democratic process... our fate as a constitutional republic is in the hands of judges.” [46:15]

Notable Quotes

1. Noah Feldman:
   “The single most important job the Supreme Court has right now... is to protect the rule of law.” [04:07]

2. Noah Feldman:
   “Good originalism would have reached the opposite conclusion... She took flexibility, which is what equity is, and she turned it into a narrow, constrained common law limitation.” [16:25]

3. Noah Feldman:
   “Overall, I would give the court a B plus... they have stood up as much as is appropriate in those cases.” [51:14]

4. Justice Amy Coney Barrett:
   “We debate whether this is a disastrous victory for the Trump administration or if... the court is playing a long game to avoid a constitutional crisis it cannot win.” [02:19]

Final Thoughts

This episode offers a critical examination of the Supreme Court's recent rulings, the balance between legal principles and pragmatic considerations, and the enduring struggle to maintain the rule of law amidst political turbulence. Feldman's insights provide a nuanced perspective on judicial strategy and the potential pathways to mitigate constitutional conflicts in the United States.