I’ve said before that Jack Goldsmith’s Substack is “essential reading” on the legal issues raised by Trump 2.0. That continues. I was particularly interested in his latest post, on yesterday’s oral argument: The Solicitor General Embraces Judicial Supremacy.
Here’s the introduction:
Many people have worried that the Trump administration might refuse to respect a Supreme Court decision. In yesterday’s oral argument in the birthright citizenship emergency order case, Solicitor General John Sauer said several times that the Trump administration views itself to be bound not just by a Supreme Court judgment, but, much more broadly, by the precedent those judgments create. This is a major concession to judicial supremacy, and a major stand-down on departmentalism, by the Trump administration.
What I did not fully understand until yesterday’s oral argument is why this concession is needed to make the government’s argument against universal injunctions work. It is, as I explain below, the price the Trump administration must pay to get relief from universal injunctions.
Whether the Trump administration can be trusted to deliver on Sauer’s concession is a very fair and open question, as I discuss at the end of this essay. But in the main thrust of the essay I will explain the logic and potential significance of the concession. I think the Court in its opinion will latch on to the concession, in a fashion reminiscent of Marbury, to give the government some degree of relief from universal injunctions even as the Court asserts the government-acknowledged supremacy of its precedents vis-á-vis the executive branch.
