The concurrence penned by Justice Alito, joined by Justice Thomas, while joining the majority’s historical analysis in Trump v. CASA, Inc., serves a distinct and revealing strategic purpose. It is less a contribution to the debate over 18th-century equity and more a preemptive strike against the inevitable attempts by litigants and lower courts to utilize alternative procedural mechanisms to achieve broad relief. Their palpable anxiety over potential “loopholes”—specifically, expansive state third-party standing and nationwide class actions—exposes a deeper agenda that suggests the motivation behind abolishing the universal injunction is not merely a principled commitment to historical formalism, but a substantive desire to insulate executive action from effective judicial review.
Justice Barrett’s majority opinion presents a clean, historically grounded argument: the Judiciary Act of 1789 authorizes only traditional equitable remedies, and universal injunctions are not among them. If the analysis were truly confined to the historical limits of equity under that statute, the availability of other mechanisms authorized by the Federal Rules of Civil Procedure or standing doctrine should be irrelevant, provided those mechanisms are properly applied. However, Alito and Thomas immediately pivot to the fear that the decision will be of “very little value” if these alternatives are readily available. This suggests that the ultimate target is not the form of the remedy, but its effect: the halting of a nationwide policy by a federal court.
Their focus on state third-party standing is particularly telling. States have increasingly become primary challengers to federal initiatives, often asserting parens patriae or other forms of standing to protect their residents. Alito and Thomas call for “rigorous and evenhanded enforcement” of standing limitations, warning against “reflexive state third-party standing.” The concern is pragmatic: if a state can establish standing to sue on behalf of its residents, an injunction protecting the state might effectively halt a federal policy within its borders, achieving a statewide “universal” injunction. If multiple states coordinate, the effect is compounded. The insistence on rigorous enforcement here signals an intent to constrict standing doctrine further, making it harder for states to serve as effective checks on federal authority in the judicial arena. This push aligns with a broader jurisprudential trend favoring executive power over both judicial oversight and, in this instance, state challenges.
The second, and perhaps more significant, target is the class action. The majority opinion explicitly positions Rule 23 as the appropriate, historically grounded vehicle for group litigation, replacing the universal injunction. Alito and Thomas, however, view this pathway with deep suspicion, cautioning against “lax enforcement” of Rule 23’s requirements and demanding “scrupulous adherence” to its rigors. They fear the universal injunction will simply “return from the grave under the guise of ‘nationwide class relief.’”
This skepticism toward Rule 23 in the context of public interest litigation is revealing. Rule 23(b)(2), designed for cases seeking injunctive relief against a party acting on grounds generally applicable to the class, seems tailor-made for challenges to uniform federal policies. If the requirements of commonality, typicality, and adequacy are met, certification should follow. The concurrence’s demand for heightened rigor suggests a desire to constrain the utility of the class action mechanism itself when deployed against the government. It implies that the objection is not merely procedural but substantive; the fear is not that Rule 23 will be misapplied, but that it will be applied effectively to achieve broad relief.
The concurrence thus unmasks the potential substantive agenda behind the majority’s procedural formalism. The preemptive attempt to curtail alternative mechanisms suggests a commitment to protecting executive power and limiting the role of the judiciary in public law litigation, regardless of the procedural vehicle employed. The anxiety over “evasion” indicates that the goal is maximizing the government's enforcement discretion and minimizing the scope of judicial intervention.
For practitioners and lower courts, the Alito and Thomas concurrence clearly signals the next frontiers in the battle over the scope of relief. Standing doctrine and class certification motions in public interest litigation will face intense scrutiny. The concurrence serves as a warning that the Court’s conservative wing is actively monitoring these developments and is prepared to intervene to ensure that the practical effect of CASA—the fragmentation of relief and the insulation of federal policy from broad, immediate challenge—is fully realized. The battle over remedies has not ended; it has merely shifted terrain.