By Daniel Horowitz:
Our political system regards the U.S. Supreme Court as superior to the other two branches of government. Why then doesn’t the high court wield its supremacy over its own branch and rein in the lawlessness of the lower courts? Shouldn’t it uproot a growing power grab by the lower courts that are issuing nationwide injunctions over broad policies? Justice Clarence Thomas seems to think so.
In Thomas’ concurrence in the “travel ban” case, he spends just one paragraph dealing with the merits of the case. In the rest of his concurrence, he addresses the fact that in this case and in many other similar cases, lower courts have been abusing their power and applying their rulings beyond the subjects of the litigation. As long as the tens of thousands of immigration lawyers can continue to challenge any long-standing immigration policy before a carefully shopped district judge and immediately secure a nationwide injunction on that policy, the categorical ruling of the majority will have a limited effect.
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