Wednesday, July 02, 2025

Uncontainable

"The accretion of dangerous power does not come in a day." Youngstown, 343 U. S., at 594 (opinion of Frankfurter, J.).  But "[i]t does come," "from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority."  Ibid.  By needlessly granting the Government's emergency application to prohibit universal injunctions, the Court has cleared a path for the Executive to choose law-free action at this perilous moment for our Constitution -- right when the Judiciary should be hunkering down to do all it can to preserve the law's constraints.  I have no doubt that, if judges must allow the Executive to act unlawfully in some circumstances, as the Court concludes today, executive lawlessness will flourish, and from there, it is not difficult to predict how this all ends.  Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.

-- Supreme Court Justice Ketanji Brown Jackson, dissenting in Trump v CASA, in which the majority ruled that federal district courts cannot be allowed to enter nation-wide injunctions (27 June 2025)

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