The Dissenter’s Dilemma and Trump v. CASA

Looking Back Less Than a Year Later

This week, the Supreme Court addresses the merits of the President’s Executive Order on birthright citizenship. I recently reviewed the Court’s precursor ruling, Trump v. CASA, which was decided last summer. And I was struck by the degree to which recent events have undermined claims made by the CASA dissenters.

To wit, the CASA dissenters suggested that universal relief was necessary both to prevent the executive from breaking the law and to generate a case on the merits for the Court to review. In fact, however, the EO has effectively been enjoined nationwide during its entire existence, and Trump v. Barbara is now before the justices.

These events afford an opportunity to consider the “dissenter’s dilemma,” that is, a dissenting judge’s desire both to “fuel outrage over a decision’s potential reach and to minimize the same decision’s actual consequences.” Did the CASA dissenters resolve that dilemma well?

First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. The dissenters asserted, for example, that the “Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution.” And they continued: “The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully.”

One practical response to this argument was that class action relief would be available. The dissenters seemed of two minds about this possibility, worrying about “cumbersome class-action litigation” while also noting that plaintiffs would be “well advised to file promptly class-action suits” and that “lower courts would be wise to act swiftly.” As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators.

Notably, the CASA majority did quite a bit to facilitate the EO’s being continuously enjoined. Perhaps most importantly, the justices had made class action equity more readily available in A.A.R.P. v. Trump. And the Court implicitly viewed that case as a companion to CASA. Though the Court’s expedited relief to a “putative class” had already issued, the justices waited until after the CASA oral argument to publish opinions explaining what they had done in A.A.R.P. And the CASA oral argument was substantially concerned with how to understand A.A.R.P.

Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. Plaintiffs would always win in the lower courts, the dissenters argued, and the Solicitor General “has no incentive to file a petition [for certiorari] either.” Thus, there was “a serious question … whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order.”

To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened.

Now, it is standard practice for dissenters to engage in doomsaying. Sometimes they are right, but usually they are wrong. And even when they are right, the reason for that might be that the dissent itself was taken too seriously, yielding a self-fulfilling prophecy. Justice Scalia’s dissent in US v. Windsor, predicting same-sex marriage rights, is often viewed as an example of a self-fulfilling dissent, as lower courts went on to quote it. In CASA, Justice Kagan’s worrying about the merits never reaching SCOTUS might have helped secure the SG’s promise to seek cert. So doomsaying can have an effect, even when—or because—it is inaccurate.

In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters’ doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.