The Supreme Court has just wrapped up another term that caused heartache in some and glee in others, largely depending on your legal and political ideology. The theme of this term, though, was bigger than just a conservative majority acting like a conservative majority. It was Congress’ failure to assert its authority and its continued decision instead to cede duties and powers to the president.
In every major case involving federal statutes, the court made plain that it would hew narrowly to the language in those statutes. To the extent that people or groups are unhappy with those decisions, the court is saying that’s Congress’ problem to fix, not the court’s.
If we the people want a single federal judge to be able to stop a president’s executive orders, we should ask our elected representatives to pass a law that says so.
Let’s start with the biggest and most politically charged case of the term: Trump v. CASA. While the case involves the president’s executive order on birthright citizenship, the justices considered a narrower question: whether, under the Judiciary Act of 1789, a federal judge can issue a nationwide injunction to stop a president’s executive order. Typically, judges have the power to make rulings that affect the people in their courtroom, but not the entire country. The court’s most junior conservative justice, Amy Coney Barrett, authored a 6-3 opinion finding that, under the nearly 250-year-old federal law, judges do not in fact have the power to issue broad forms of relief that cover the entire country.
Many viewed the CASA decision as the conservative court handing a win for the Trump administration. Justice Sonia Sotomayor said that, with the ruling, the majority “strips federal courts of the ability to safeguard constitutional rights in the face of nationwide executive overreach.” In the most dire terms, Sotomayor warned that as a result of the court’s decision, “No right is safe in a regime where courts cannot fully protect those before them.”
There’s no doubt that the court’s ruling is a win for any current or future inhabitant of the Oval Office. But nothing in the majority opinion suggested that Congress lacks the power to go back and write a different law explicitly providing federal judges with this power. If we the people want a single federal judge to be able to stop a president’s executive orders, we should ask our elected representatives to pass a law that says so.
Next, consider the case of Medina v. Planned Parenthood of South Atlantic, where the court concluded that individual Medicaid beneficiaries did not have a private right to sue in federal court to enforce purported violations of the federal Medicaid law. Back in 2018, South Carolina’s governor attempted to exclude Planned Parenthood from the state’s Medicaid program. An individual who had obtained care at Planned Parenthood sought to sue South Carolina, arguing that its decision violated the provision of federal Medicaid that allows beneficiaries to obtain health care from any qualified provider. Justice Neil Gorsuch authored the opinion for the majority of the court and concluded that the case could not move forward because the federal Medicaid law did not clearly demonstrate Congress’ “intent to confer individual rights.” Once again, the Supreme Court did not conclude that individuals can never sue to vindicate alleged violations of a specific law, but rather that the law needs to be redrafted to let them do so. Finally, in a unanimous decision authored by liberal Justice Elena Kagan, the court rejected the Mexican government’s attempt to hold U.S. gun manufacturers liable for gun violence in that country. There is little doubt that guns made in the U.S. make their way into the hands of Mexican drug cartels and wreak havoc in that country. But under a federal statute, gun manufacturers are largely immune from liability, and both liberal and conservative justices refused to find an exception to that broad grant of immunity. If we want gun manufacturers to pay for gun violence abroad, we need to tell members of Congress to write a different law. Simply put, this Supreme Court won’t step in when Congress is silent or vague. The court will not patch up holes in outdated laws. The Constitution vests “All legislative Powers … in a Congress of the United States,” yet modern Congresses have too often sat on their hands or yielded to the executive branch. If you want federal judges to have the power to issue nationwide injunctions to halt a president’s executive orders, or individuals to sue to vindicate their rights under federal Medicaid law, or a foreign country to sue gun manufacturers, speak with your elected representatives. The Supreme Court is not here to be your lawmaker.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
