The Supreme Court's Final Hot Summer Rulings
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The Supreme Court closes out its term by dropping its final cases, including big rulings on nationwide injunctions, parental rights, and age verification laws for adult websites. Welcome, I'm Kyle Peterson with The Wall Street Journal. We are joined today by my colleagues, columnists Kim Strassel and Alicia Finley.

The arguments against universal injunctions, which judges issue binding parties that are not involved in the specific lawsuit before the court, have percolated for years now. One side says that they are needed in an era when the executive branch and the president is often stretching its authority and often beyond its breaking point.

The other side says that universal injunctions create dysfunctions in the court system. They encourage form shopping as Democrats run to courts in California. Republicans run to courts in Texas to get one federal judge to block some action by the White House.

Let's listen to Attorney General Pam Bondi making some of those arguments today in response to this big court ruling. These lawless injunctions gave relief to everyone in the world instead of the parties before the court. As the Supreme Court held today, they turned district courts into the imperial judiciary. Active liberal justices...

Judges have used these injunctions to block virtually all of President Trump's policies. Kim, the ruling today from the Supreme Court written by Justice Amy Coney Barrett, it's a 6-3 with the conservatives in the majority and the liberals in dissent, acknowledges those arguments on both sides, including the ones you just heard from Attorney General Pam Bondi, and then says, in essence,

We do the law here and we don't do policy. And the law is that there is no history in the American tradition for these kinds of sweeping universal injunctions, binding everybody, not authorized by the act of law passed by the first Congress setting up the judiciary, the U.S. court system. And so reigning in these sweeping injunctions of relief issued by lower court judges. Yeah, this is a fantastic decision. And if I may note, very, very,

much overdue as well, too. If you go back through the record, you'll find Clarence Thomas complaining about these national injunctions and some of the dissents and opinions that he wrote all the way back 10 years ago because they were starting to take off. And

This is correct. This is not something that was ever in our history up until relatively recently. Courts really did constrain themselves to, if they were going to put forward a national injunction, district court judges usually did put it on the parties that were in front of the court. More recently, we have had this expansion of district court judges, mostly I would note liberal judges, although you do occasionally get conservative judges who have done it as well too, and

that would say this policy is so egregious, we can't allow it to happen anywhere in the country. It potentially affects everybody in the whole nation. And therefore, we're going to put a nationwide injunction out there.

You saw these really rise during the first Donald Trump tour already. Since he's been in office the few months this time around, there's been more than 40 that judges have put forward on all the major actions that he has attempted to engage in, whether it be questions on immigration law or some of his spending actions that he's taken. It runs the gamut of most of the stuff that they have done in their reform agenda, and

And what this essentially says is we as the judiciary settle cases and controversies, and we deal with the plaintiffs that are in front of

the court. And for those who argue, oh, this now means we'll have an imperial presidency. No, the cases will still get adjudicated. They will still have to go the parties and put forward and argue on the merits. And if it is found that Donald Trump is exceeding the law or breaking the Constitution with an action, then at that point, the court will rule and he'll have to stop. But in the meantime, you cannot have judges that are

essentially overriding the executive branch, stopping them from engaging in anything. They must constrain themselves to the people that are in front of them. They did give a couple of little exceptions when it came to states, although they still were quite vigorous in the rules that they said that if states as plaintiffs have to follow. And then there's also a way they suggested you could go forward where you could

form a class action. There are a lot of procedural hurdles at the beginning to get a class action certified. So it is going to be a little bit of a barrier. It's going to be a huge new barrier, a huge new world for these district court judges that were themselves acting a bit like imperial judges. The context of this ruling relates, it involves the executive order signed by President Trump that purports to deny birthright citizenship to

to certain children born in the U.S. to non-citizen parents. And Alicia, the consensus of the legal community, as I take it, is that that executive order by President Trump is probably unconstitutional under the 14th Amendment. And my guess is that that will eventually reach the Supreme Court, which will say as much. For now, the majority is reserving judgment on this question and dealing only narrowly

with this issue of how far lower court judges can go in these kinds of cases to block some kind of executive action taken by a president or a White House. What about that question, Alicia, of class action lawsuits?

That was one thing that was discussed in this case at oral arguments is if, for example, women who are pregnant sue and they say President Trump's executive order on birthright citizenship is unconstitutional. Under this ruling, as Justice Amy Coney Barrett lays it out, a judge could say, OK, I agree with you that this ruling, this executive order will not apply to you and your child.

But the judge will not be able to extend that in a nationwide junction to every woman and every child in the United States of America. But some suggestion, Alicia, that maybe you would end up just having more class action suits, which is a approved way of having litigation by one party or a group of parties that are supposed to be representative of everybody else.

Right. And to Kim's point, this does create more hurdles procedurally at the beginning of litigation. You have to show and prove that the plaintiffs are similarly situated. And then oftentimes, and I'm not just talking about in the context of government regulations, but in other contexts,

torts, for instance, this can be a high hurdle to overcome because courts have tried to limit class actions purposefully so you don't have these broad sweeping rulings that provide relief to people who weren't ever affected by something. So that does create one barrier, but I think you could still see more class actions. Again, they would just have to jump through some more hoops and loops

to get a ruling in their favor. The flip side, I think what you're also going to see more, at least when you get challenges to government regulation, you'll probably get more industry group challenges or challenges by the U.S. Chamber of Commerce, broader plaintiff groups bringing lawsuits

rather than just an individual business. For instance, with regards to Trump's tariffs, Liberation Day tariffs, you've had some individual businesses bring those challenges, but the Chamber of Commerce and some other larger business groups decided not to, partly for prudential reasons and strategic reasons.

But I think going forward, you'll probably see many more challenges by industry groups as a way to provide broader relief when an executive oversteps and overreaches on regulation. And you have to keep in mind that this will go both ways. Right. And then the reason why the dissent is so fiery on the left is in part because they think that Trump is overreaching overreach.

And they like these national injunctions. But on the other hand, this ruling will also constrain some conservative judges in the Fifth Circuit. There are a couple in particular that have been very eager to issue these national injunctions. So it will also constrain them from issuing national injunctions and blocking policies, regulations by Democratic presidents or Congresses. Hang tight. We'll be right back in a moment.

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Welcome back. A couple of points to jump off there. One is if some of this litigation is going to get converted into class actions or it's going to be brought by associations instead of individuals, or if there are just more individual cases, it does raise the question of how much a ban on universal injunctions is actually going to clear up the Supreme Court's emergency docket and a notable concurrence by Justice Brett Kavanaugh on that point.

He says this, when a stay or injunction application arrives here, this court should not and cannot hide in the tall grass. He brings up examples of litigation, the Clean Power Plan, Title IX, litigation over the abortion pill Mifepristone, and suggests that those things will still end up being decided on an interim basis by the United States Supreme Court. Again, another quote from

Justice Kavanaugh, one of this court's roles in justiciable cases is to resolve major legal questions of national importance and ensure uniformity of federal law.

So he still seems to think that even if there is no nationwide injunction on a case like birthright citizenship, you're still going to end up at the Supreme Court with that question. You just may end up having hundreds of cases may be brought by individual people instead of one case where there is a all or nothing high stakes universal injunction that has been issued. Then on this point about the fieriness in the opinion that

by Justice Barrett. Kim, I think that's notable. She goes pretty hard at one of the dissents in particular, a separate dissent filed by Justice Katonji Brown Jackson. Justice Jackson says, among other things, that this ruling is an existential threat to the rule of law.

And Justice Barrett does not mince words in response to that. She says that the approach of Justice Jackson is, quote, at odds with more than two centuries worth of precedent, not to mention the Constitution itself.

She adds this, Justice Jackson decries an imperial executive while embracing an imperial judiciary, unquote. And I think that's particularly notable given the criticisms by some on the MAGA right, Kim, lately that Justice Barrett is a pushover.

No, I mean, as we have talked about before, obviously Justice Barrett is not a pushover. And I have found those criticisms to be really wild just because some on the MAGA right are not getting every single opinion written exactly the way they want it written at exactly the time they want to have it.

does not in any way make Justice Amy Coney Barrett a squish. She has been a very reliable textualist judge. Sometimes she is in a slightly different place than some of her colleagues. Sometimes her colleagues are in a slightly different place than the rest of the court. This is what we call individualism, and it's good.

I was glad that she called out the dissent in this case because one thing that we did see this term, it's been rising. And some folks have said this wasn't as exciting as Supreme Court term as we've had in recent years. They didn't have as bombshell of cases. By the way, I say, phew, like every once in a while, it's kind of nice to not have kind of the fate of the world waiting for a Friday in June for the Supreme Court to decide it.

We all could use a break. But what we have seen over the last couple of years is this rising rhetoric from the liberal minority. And I get that they're frustrated that they are losing some of these big cases, but

But their rhetoric is so hot, it's so apocalyptic, and also increasingly critical of the majority that they are doing a disservice to the judiciary overall. They are leading people to lose confidence in the way the judiciary acts and sort of becoming much more aggressive in their language and suggesting a lot of things that aren't really going to happen.

If they really cared, because one last thing I will throw in about this case is a lot of it has been about the talk between judicial powers and executive powers. And obviously the dissents are focused on claiming that this somehow unleashes the executive in tyrannical ways.

This is actually a great ruling for the judiciary because a lot of bad things also flow from nationwide injunctions. One is the growing abundance of forum shopping, which the Supreme Court traditionally really hates. And that is where

because litigants want to get these nationwide injunctions, they game the system to try to file a lawsuit in a district where they know they will get a judge who will therefore be more likely to go along with a nationwide injunction. That is runs counter to everything we want the judiciary to be, which is that you get the judge that you get on the case you get. The other thing nationwide injunctions do is they shut down debate among the circuits.

And that is the way you fully flesh out legal questions. You want different circuits to have different plaintiffs maybe litigating the same question. This is to your point, Kyle, about the Kavanaugh concurrence that he wrote is you might end up with a bunch of different cases.

on the same topic in different jurisdictions. And that's good because they go up to different circuits and sometimes those circuits disagree. But in the process of all that litigation, you get the full and wide variety of legal argument around the case. And that's what the Supreme Court wants to be seeing when they finally take on a case and decide to make a decision to know that it has been truly aired. None of that happens when one judge decides

steps in and denies everyone else in the country any more legal debate on a topic because he's issued a nationwide injunction. Let's turn to what else was on the Supreme Court's docket on Friday. Interesting case out of Texas. This one is Free Speech Coalition versus Paxton. It involved a law called HB 1181, which says that adult websites are

have to start using, quote, reasonable age verification methods, which was challenged under the First Amendment. Here is a piece of the opinion by Justice Clarence Thomas writing for the 6-3 majority. It says that this law furthers the lawful end of preventing children from accessing sexually explicit content, but it also burdens adult visitors of these websites who all agree have a First Amendment right to access at least some of the content that the websites publish. We

We granted certiorari to decide whether these burdens likely render HB 1181 unconstitutional under the free speech clause of the First Amendment. We hold that they do not, unquote. And Alicia, part of what I think is interesting about this case is that it might be a watershed in state law.

experimentation. I understand the concerns that people have about uploading IDs to the internet to access certain websites. On the other hand, there has not really been, I think, much attempt in recent years of trying to limit children's access to that kind of material. And I think widespread popularity for it, the Texas law, for what it's worth, passed 164 to 1 in the state house and Senate. That was the combined vote. Now we will start to see, now that this Texas law has been ruled constitutional,

How some of these states approach that problem and how it works in practice. Well, right. So it was a 6-3 ruling. I'm surprised that wasn't a 9-0 ruling because the Supreme Court decades ago ruled in its Miller precedent that there is no constitutional right to essentially for obscenity and pornography for children is considered obscene.

Now, what this law essentially does, as you point out, is the required age verifications to ensure that children cannot access porn. Now, these porn sites argued, well, there is a First Amendment adult right to view pornography, and it therefore burdens the adults' First Amendment speech rights.

Supposedly, I think this is a strange argument in itself because somehow their privacy could be compromised. And so they might be less inclined to upload their identification if they're worried that their identities could get out or leaked in some way through a hack. Now, again, this is a very strange argument. And the six judges and the majority, the conservatives, swatted that down pretty hard.

Yes, I think this will encourage other states and other states have to impose some kind of age verifications to limit children's access to these sites. It won't necessarily solve the problem. I think there's also going to be more movement among states to require age verifications more broadly, for instance, for kind of social media and such. You know, the big tech companies have fought that.

And it's not clear whether this opinion will have a direct bearing on those laws because the First Amendment concerns are slightly different. You might actually have a strict scrutiny, unlike intermediate scrutiny, which was what the justices reviewed the Texas law under, which is just much more lenient and easier to uphold.

But I think this does encourage states, to your point, to experiment. You know, states are laboratories of democracies. So I think we'll see many more efforts to protect children from the pornography and other Internet horrors. Hang tight. We'll be right back after one more break. The spirit of innovation is deeply ingrained in America.

And Google is helping Americans innovate in ways both big and small. The Air Force Research Laboratory is partnering with Google Cloud, using AI to accelerate defense research for air, space, and cyberspace forces. This is a new era of American innovation. Find out more at g.co slash American innovation. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast. ♪

From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Welcome back. Another 6-3 decision on Friday was in Mahmoud v. Taylor. This is a case out of Maryland and involved parents who were seeking an opt-out from some of the English language instruction that had been added in the public schools in Montgomery County, specifically books with gender, transgender messages, titles like My Rainbow and Born Ready.

The opinion here is by Justice Samuel Alito, and here's what he says. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses a very real threat of undermining the religious beliefs and practices that the parents wish to instill. And a government cannot condition the benefit of free public education on parents' acceptance of such instruction.

So, Kim, that's an interesting case. Honestly, I was surprised. I don't understand why Montgomery County, Maryland wanted to take this case to the Supreme Court and didn't just give these parents the opt out, the notice that they were denying. I mean, they could have told the parents we're going to read these books on Friday. If you'd like your child to be absent on Friday, that's fine. And they seem to want to not give an inch on that. And now they've lost the case. Yeah. And they really did do themselves in.

for another reason. But first, can I just point out, here's what's cool about this opinion. It's the first time I ever remember seeing color photos published in an opinion. We've had diagrams in the past. I remember that one of the opinions from recent years, Clarence Thomas had like some diagrams of how firearms work.

to better explain the actions and firearms as part of an opinion. But this one actually has excerpts from the books that were being discussed. So it was really wild to pull up the opinion and see these color photos and these excerpts from these books. Montgomery County really made a really fundamental error here, I think, that counted against them in the end, which was that they had originally told parents that they could opt out.

And then they changed their mind afterward when some of their teachers complained and said that it was just too difficult to give some kids the ability to go out. And it was sort of wild. I find this another one of these cases. I'm a little bit surprised from a common sense level that this wasn't a 9-0 decision. Alito does a very good job of saying that there is a difference here.

between presenting a book that simply includes, for instance, the existence of gay couples, very big difference between that where they are simply just part of the book alongside other characters in the book, and a book that is clearly sort of designed to teach kids a specific outcome about how they're supposed to feel about what are in fact really controversial religious issues for a lot of people in the country.

And one of the other problems here was that unless these parents submitted to that form of, and I will call it essentially cultural indoctrination, in the classroom, their only option was to withdraw from school entirely, public schooling, and pay for some sort of homeschooling or private schooling, many of them which do not have the financial resources to do. So there are taxpayers paying for public schools, but essentially saying that if you don't accept

what we teach from our cultural perspective that is offensive to your religious beliefs in the classroom, you can't come to this school anymore. This, to me, falls very squarely in some of the great advances the Supreme Court has made over religious liberty in recent years. It's adding up to be quite a wide doctrine, and it's very good to see. Finally, rounding out the five opinions, the five cases that were dropped, a couple of other 6-3s, but in the other direction. One of them involved

A delegation by Congress to the FCC and then to a private nonprofit group authorizing it to raise funds from telecom providers to fund universal service. That was a 6-3 decision written by Justice Elena Kagan. And then another one on the appointees to the U.S. Preventive Services Task Force.

That was a 6-3 by Justice Brett Kavanaugh. But in both cases, the dissenters were the three conservatives, Justice Thomas, Justice Neil Gorsuch, and Justice Alito. Alicia, what's your takeaway from these two cases? Well, I think both cases, it was a bit of pragmatism that won out. I disagreed with both of the rulings.

One of the cases, as you noted, involved a congressional delegation to the FCC to essentially set up this universal service fund and levy taxes to subsidize universal service, which Congress never really defined in the statute. And giving the FCC freewheeling authority to define it essentially however it wishes.

And now the FCC essentially gave this other private nonprofit freewheeling authority to impose taxes on your phone bills to fund whatever universal service. And this could be anything from like a hotspot for schools to even as Neil Gorsuch points out in his dissent, a starlink for everyone.

there really is no constraints. Now, the majority reason, well, there's some vague language in the statute writing some direction about qualitative direction on what the FCC should be subsidizing. And this provides some kind of limit on the taxes. Neil Gorsuch and the dissent joined by the other two conservatives basically tear apart this reasoning and accuse the majority of

ruling based on pragmatic considerations that, well, if this arrangement, this law were to be struck down, then that could potentially imperil some other programs or laws that Congress has delegated to agencies to fund without any actual limiting principle. And I think that that's why the chief, Justice Kavanaugh and Amy

Coney Barrett may have ruled the way they did is that they didn't really want to open up this can of worms that could imperil other agencies and funding other programs. Though it will also no doubt encourage Congress to create more of these kinds of arrangements where they just provide federal agencies nearly blanket authority to impose taxes in the name of some kind of vague principle or policy prerogative.

Now, the other case involved this preventative task force, which actually preceded Obamacare. But Democrats in Obamacare gave this task force a pretty broad authority to define what should be essentially essential preventative services that insurers are required to provide without cost sharing.

And the issue here was whether these members of this Preventive Services Task Force were inferior officers or of the U.S., which could be appointed by the HHS secretary, and that is now Robert F. Kennedy Jr., or if they were officers of the U.S. and needed to be appointed by the president and confirmed by the Senate.

Now, the majority said, well, they don't really have that broad of authority, so they could be inferior officers, and therefore the status quo is fine. Problem here is that majority essentially rewrote the entire law. The law actually just says that the HHS secretary shall convene, doesn't even give him the authority to appoint, but shall convene. And if they convene this task force,

And so it's really unclear exactly how they are to be appointed. Convene is not a point. And I think the decision here is just going to embolden Congress or enable Congress to write sloppy language and to hope that Congress later fixes it. I think the other issue here is that Congress is continuing to abdicate authority and cede authority to these even...

outside bodies. This task force is supposedly, even in the law as written, is supposed to be independent, quote unquote. And the Supreme Court has done a lot in recent years to limit administrative agencies and to rein in the bureaucracy. But here I think it's just the majority actually has empowered these bureaucracies and the outside experts.

to overrule the political branches. And I don't think the Constitution even envisions something like this preventative task force. Thank you, Alicia and Kim. You can email us your own rulings and dissents at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back next week with another edition of Potomac Watch. The spirit of innovation is deeply ingrained in America.

And Google is helping Americans innovate in ways both big and small. The Air Force Research Laboratory is partnering with Google Cloud, using AI to accelerate defense research for air, space, and cyberspace forces. This is a new era of American innovation. Find out more at g.co slash American innovation.