Constitutional lawyer Jeff Lewis joined "Forbes Newsroom" to discuss the importance of precedent as the Supreme Court case about birthright citizenship and the power of lower courts to issue nationwide injunctions.
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00:00Is there anything within the Constitution that would prevent that mess or perhaps make this case go in a different direction?
00:07Or I guess you said 6-3. Could it go 6-3 in the other way because of something that is in the Constitution that would allow for nationwide injunctions?
00:18Well, getting to Justice Thomas's questions today, there is no real express provision in either the Constitution or the Judiciary Acts passed by Congress that empowers judges to issue nationwide injunctions.
00:29There is a historical practice, and the question is whether or not the Supreme Court wants to craft, not as a matter of constitutional law or congressional authority, a judicial doctrine that the certain extreme cases of constitutional violations that are clear on their face.
00:45There is a hypothetical possibility that they could create such a doctrine, but I didn't see the votes today for that.
00:52And you mentioned precedent. How much does this court care and consider precedent compared to other courts in your experience?
00:59Well, that brings us back to Roe v. Wade being overturned. Roe v. Wade was long held to be the law of the land, and that was discarded.
01:06There's been decades of lower courts and higher courts all the way up to the Supreme Court affirming the use of national or nationwide injunctions.
01:15And so this would be a, I'm not going to say unprecedented, but this would be a departure from those cases and precedent that allow national or broadly phrased injunctions to be given effect.