Immigration Article of the Day: Procedure and Remedies in a Rigged Forum by Alexi Pfeffer-Gillet

Procedure and Remedies in a Rigged Forum by Alexi Pfeffer-Gillet,
Washington and Lee Law Review (forthcoming)

Abstract

When the Supreme Court decided Trump v. CASA in 2025, the conservative majority portrayed itself as adhering to historical principles to ensure that courts did not unduly intrude on executive authority. The remedy of “nationwide” or “universal” injunctions, the Court said, “improperly prevents the government from enforcing its policies against nonparties.” By focusing on the propriety of such injunctions as an abstract procedural matter, the Court expressly dodged considering the actual legality and harms of the Trump administration’s plan to end birthright citizenship. The majority thus portrayed itself as above the fray of politics.

This Essay highlights a recent development that warrants additional skepticism toward the Court’s purportedly neutral stance in CASA: the leak of internal memoranda from 2016 concerning the use of the shadow docket. In those memoranda, we see two of the Justices who joined the CASA majority, Chief Justice Roberts and Justice Alito, making express policy arguments to justify what would ultimately produce a nondescript order staying the Obama administration’s implementation of a new carbon‑emissions policy. The concern from CASA about executive independence and affording relief only to parties was nowhere to be found in Roberts and Alito’s internal memos, which instead prioritized the policy of minimizing costs to the energy industry broadly.

The inconsistency between the Court’s public‑facing procedural reasoning in CASA and its internal shadow docket policy arguments yields two conclusions. First, the Court is rigging the rules to achieve its desired policy outcomes: novel judicial intervention is good when it helps industry but bad when it undermines right‑wing policies. Building off the first conclusion, this Essay argues that mass arbitration provides inspiration for how disfavored parties can navigate a rigged system. The mass‑arbitration tactic of filing thousands of simultaneous arbitrations was a direct response and creative way to exploit the Supreme Court’s decades of forcing parties into a forum with rules rigged to favor defendants. As the Court today rewrites public law to achieve conservative policy goals, the fight against authoritarianism requires similarly novel and creative legal responses.