In a string of cases Friday, the conservative justices on the Supreme Court handed the Republican Party win after win. The court restricted nationwide injunctions against President Donald Trump’s order on birthright citizenship, greatly hindering the powers of lower federal courts to constrain the president. It allowed parents to opt their kids out of public school education that offended their religious upbringing. And it let the state of Texas require age verification before anyone looks at online porn.
There is no question that each of these cases is a significant victory for conservatives in the short term. However, each also gives liberals an opening to try to accomplish their policy goals, but only if they are willing to be aggressive and break norms they’ve previously wanted to maintain.
Justice Sotomayor’s tit-for-tat warning was directed at the justices in the majority, but it could also be seen as an invitation to Democrats.
First, in the birthright citizenship case, the Supreme Court’s six Republican-appointed justices addressed a procedural question, not the issue of whether the president’s order rejecting the idea of birthright citizenship is unconstitutional (even though it clearly is under the Fourteenth Amendment and federal statutory law). On the procedural issue, the court held that lower federal court orders stopping the president’s unlawful actions could apply only to the people who brought those cases. In other words, even if a president issues a plainly unconstitutional order, all lower courts can do is provide relief to the individuals who had the foresight and resources to sue in federal court. The order cannot apply to everyone else in the country.
Yes, there are some exceptions. Cases can be brought as class actions, meaning a small number of people can bring the case on behalf of all other people in the country like them, but the court has spent the past two decades making such cases harder to bring. Also, states might be able to sue on behalf of their citizens and get nationwide relief under the theory that a citizen of, say, New Jersey, travels to other states and needs protection there. However, several justices have been skeptical of cases brought on behalf of others, so the future viability of such a strategy is unknown. Finally, never shy about giving itself more power, the Supreme Court said it can issue nationwide injunctions.
However, the court’s holding against universal injunctions from lower court judges is now the law of the land. And as a legal rule, in theory, this decision should apply in all cases regarding universal injunctions, not just cases brought against Republican policies. Justice Sonia Sotomayor recognized this in her dissenting opinion: “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship.”
Justice Sotomayor’s tit-for-tat warning was directed at the justices in the majority, but it could also be seen as an invitation to Democrats willing to push boundaries. The next Democrat in the Oval Office or even Democrats now in charge of state governments can look at the Supreme Court decision and take new actions knowing that lower courts shouldn’t have the power to issue nationwide or statewide injunctions stopping them.
A health care directive promoting reproductive freedom? An executive order forgiving student loans? A state initiative that restricts gun sales? A vaccination requirement that some religious people object to? An environmental directive that might infringe on some business’ claimed right? After Friday’s decision, even if these policies are challenged before very conservative federal judges, those judges shouldn’t have the power to stop these Democratic actions beyond just the parties to the case, no matter how unlawful or unconstitutional these judges believe them to be.
Some or all of these actions might not survive the court’s eventual scrutiny.
Liberals can apply the same thinking to the Supreme Court’s ruling about LGBTQ+ books and religious exemptions. In that case, the conservative majority said that schools that teach books that burden parents’ religious beliefs violate the Constitution’s guarantee of free exercise of religion. In order to avoid this, schools must offer kids an opt-out so they aren’t forced to learn about gay marriage or trans people. Critics of the court’s decision worry that parents might cite their faith to push back against books that include depictions of interracial marriage, women in the workplace or evolution.
But liberals can have beliefs grounded in religion, too. Which means they, too, can throw a monkey wrench into the system on behalf of their liberal agenda. For instance, schools around the country are adopting “Baby Olivia” videos to promote anti-abortion views. A religious family who believes bodily autonomy and women’s rights are central to their religion can object and force the school to create an opt-out process. Finally, there’s the age verification case involving online porn. In this case, the conservative justices said that while adults have the right to view pornography, minors don’t. Thus, Texas is allowed to put what the majority of the court viewed as a minimal burden on adults — the online age verification process — in order to stop minors from viewing porn, even though some adults viewed the process as violating their privacy. Once again, liberals can play this game, as well. For instance, if Texas wants age verification for porn websites, California could require age verification for websites that sell or advertise guns. Sure, some or all of these actions might not survive the court’s eventual scrutiny. Each of the doctrines at issue in these cases and hypotheticals have exceptions and complicated sub-rules. Moreover, if the Supreme Court doesn’t care about law and cares only about furthering a conservative ideological agenda, it will find a way to rule against liberal causes and politicians while ruling for conservatives. But Democrats and liberals need to force the court’s hand by using these supposedly neutral rules to push their own agenda. The court may be tilted ideologically against them, but that doesn’t mean giving up ahead of time. Instead, they should use the tools given to them to accomplish their policy goals and dare the Supreme Court to display blatant hypocrisy by stopping them.
David S. Cohen
David S. Cohen is professor of law at Drexel University's Thomas R. Kline School of Law and the author of "After Dobbs: How the Supreme Court Ended Roe but Not Abortion." 
