Justice Jackson’s dissent in Trump v. CASA, Inc. operates on a different plane than the historical debate dominating the majority and principal dissent. Dismissing the inquiry into 18th-century Chancery practice as a “mind-numbingly technical query,” Jackson refocuses the analysis on first principles: the structure of constitutional governance and the existential requirements of the rule of law. Her dissent is a powerful, functionalist critique, arguing that the majority’s restriction on universal injunctions creates an untenable “zone of lawlessness” and fundamentally undermines the judiciary’s essential role in checking the Executive Branch.
Jackson frames the core issue starkly: “May a federal court in the United States of America order the Executive to follow the law?” Her answer is that the judiciary not only may, but must, have this power. In a constitutional republic, the law binds everyone, including the Executive, “full stop.” The role of the judiciary, derived from the separation of powers, is to ensure fidelity to the law by all actors. When this power is curtailed, the system risks reverting to rule by fiat.
The central thrust of her argument is the critique of the “dual-track system” created by the majority. Under this system, the Constitution binds the government only with respect to individuals who have successfully sued. For everyone else, compliance with the law becomes a matter of “Executive prerogative.” This, Jackson argues, fundamentally alters the nature of constitutional rights. They are transformed from universal guarantees that constrain government action ex ante, into individualized privileges contingent on the resources and ability to litigate.
Jackson forcefully argues that this creation of a “zone of lawlessness” is not merely a theoretical concern but has severe, disparate practical impacts. The burdens of individualized litigation—cost, fear, lack of information—fall most heavily on “the poor, the uneducated, and the unpopular.” In the context of the birthright-citizenship Executive Order, this includes vulnerable immigrant communities. By eliminating the tool that allowed organizations to secure protection for broad communities, the Court effectively rations constitutional protection to those with the means to demand it. This creates a system where the Constitution protects the privileged, while leaving others subject to the Executive’s discretion.
Jackson’s dissent directly confronts the majority’s conception of the judicial role and its reliance on English historical models. She argues that it is misguided to look to the relationship between English courts and the King to define the power of the American judiciary vis-à-vis the Executive. The U.S. Constitution explicitly rejected a monarchy and established a system of checks and balances where the judiciary is empowered to constrain the political branches. The historical limitations of the Chancery Court, operating under a sovereign, are therefore inapposite to the role of Article III courts.
The exchange between Justices Barrett and Jackson highlights a fundamental disagreement over the nature of judicial power and the threat of imperialism. The majority accuses Jackson of embracing an “imperial Judiciary.” Jackson retorts that the true threat comes from an unchecked Executive, and that the majority, by constraining the judiciary's remedial powers, is facilitating executive overreach. For Jackson, judicial duty requires effective remedies to halt unlawful action; failing to do so constitutes an abdication of the judiciary’s constitutional role.
Jackson’s analysis challenges the premise that universal injunctions improperly grant “relief” to nonparties. She suggests that when a court enjoins the Executive from violating the Constitution, it is not distributing a benefit, but enforcing a pre-existing constraint. A constrained Executive, she argues, is a “public benefit, guaranteed to all from the start.” A universal injunction merely restores the constitutional baseline.
The functional necessity of broad relief is paramount in Jackson's analysis. If historical tools are inadequate to address modern, systemic violations, the judiciary’s duty to uphold the Constitution must trump historical formalism. The majority’s approach, she warns, sanctions a return to a system where the Executive can “determine for himself what is law,” a path that leads to “chaos, then tyranny.”
Justice Jackson’s dissent serves as a powerful counter-narrative, emphasizing function over form and consequences over historical pedigree. By arguing that the majority’s ruling facilitates executive lawlessness and undermines the foundational principle that the government is always bound by the Constitution, the dissent highlights the profound stakes of the decision, warning that it puts the very structure of the constitutional Republic in “grave jeopardy.”