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THE INTERVIEW| Legal scholar: SCOTUS shrinks Nationwide Injunctions, Class Action in Peril
University of Michigan legal scholar and author Leah Litman tells Hilary Golston the Supreme Court’s new ruling strips lower courts of their strongest check on presidential power while quietly undercutting the only fallback tool left, class action lawsuits.
The Supreme Court’s decision to strip lower courts of their broadest tool to stop presidential policies is already reshaping the fight over immigration, abortion access, and who counts as an American citizen, with echoes reaching back more than a century.
In a 6–3 ruling, the justices sharply limited the use of nationwide injunctions, sweeping court orders that can freeze a federal policy for the entire country, even when only a handful of plaintiffs sue. Critics argue these injunctions are essential guardrails to keep presidents in check. Supporters of the decision say they’ve become partisan weapons that let a single judge override national sentiment.
Leah Litman, a University of Michigan law professor and author of the New York Times bestseller "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, & Bad Vibes," spoke with Hilary Golston about what’s really at stake. She said, "The Supreme Court just took away what has been lower courts’ most effective and potent tool to hold the administration accountable to the law and to enforce the law against the administration — that is the nationwide injunction. We should understand this decision as a win for the Trump Administration in their efforts to get out from under the host of unfavorable lower court rulings they have faced."
Litman said the rise of nationwide injunctions has mirrored the dramatic expansion of federal power over the last century. "Nationwide injunctions were a response to a federal government that was accumulating more and more powers, including a President and an executive branch that was accumulating more and more powers," she said. "As those powers increased, so too did the remedies that were necessary to stop illegal policies."
Trump’s controversial executive order to restrict automatic birthright citizenship — a policy anchored in the 14th Amendment and the Supreme Court’s landmark United States v. Wong Kim Ark ruling from 1898, now faces its first tests in lower courts that have fewer tools to block it nationwide. Litman said, "I think it’s likely that some part of the birthright citizenship case is going to go back to the Supreme Court — what that part is, is unclear."
States challenging Trump’s order might now have to rely on narrower injunctions or try to pursue class-action lawsuits instead. But Litman warned that option may be a dead end too: "It is there but available in theory if the Supreme Court does not allow plaintiffs to actually obtain class certification and litigate their cases on behalf of a class. In a series of cases, the Supreme Court has rejected class action theories." She added that whether these states and plaintiffs can get certified as a class could bounce right back to the justices "rather quickly."
Litman also rejected any notion that the legal battles Trump faced are identical to the cases that targeted Biden’s administration. "The efforts to characterize the nationwide injunctions that the Trump administration was subject to as similar to the ones the Biden administration faced is just a kind of false equivalency," she said. "The nationwide injunctions that the Biden administration was subject to were disproportionately, overwhelmingly, from district judges in Texas — fewer than a handful came from anywhere outside of the Fifth Circuit and all of them came from Republican appointees." By contrast, she said, "The Trump Administration has been subject to nationwide injunctions in many of the circuits, subject to injunctions by judges who have been appointed by President Bush, Reagan, Biden, Obama and Trump himself."
She added that the new limits won’t stop partisan tactics in the lower courts either. "I don’t think this is going to solve the problem of these politicized cases being generated by particular judges who are willing to give certain litigants whatever they want."
For now, the Supreme Court has sent the birthright citizenship fight back to the lower courts — avoiding a final ruling on whether the executive order itself is constitutional. Litman called that move "cynical gamesmanship," arguing the justices "wanted to give the administration a win" while leaving the bigger fight for another day.