On the Dangerous Road to Instantaneous Democracy: Judicial Remedy and the Dismantling of Institutional Decelerator in Trump v CASA

Ming-Sung Kuo

University of Warwick (UK)

Introduction

The decision of Trump v CASA came at the end of the 2024-25 term of the Supreme Court of the United States (SCOTUS) just before the Court entered the summer recess. In this much anticipated and already widely discussed decision, SCOTUS curbed federal judges’ power to issue universal injunctions in the States. One core issue gripping the attention of both critics (eg, here and here) and sympathetic readers (eg, here and here) of CASA concerns the court’s classical function to effect judicial remedy in a litigation, while upholding the rule of law: will the SCOTUS-imposed restriction on universal injunctions in CASA render judicial relief less effective and thus undermine the rule of law in the States?

This all-important debate lies at the centre of constitutional lawyering in the US context and is invaluable to comparative studies of courts in the face of democratic backsliding and populist deinstitutionalization the world over. Yet it is not the objective of this blog post to join the crowd dwelling on the legal technicalities of whether and to what extent SCOTUS’ restrictive ruling on universal injunctions can be effectively worked around through alternative remedial routes in the US context. My interest is instead in the broad significance of interim remedies (including universal injunction) to the judicial role in a constitutional order in the shadow of intensified social acceleration. Drawing on what I have developed in an article written against the global rise of a new populism during the first Trump presidency, my contention here is that the slow-moving court could serve the long-term purpose of constitutional democracy as an institutional decelerator on the move towards instantaneous democracy, and the value of injunctive remedies, including universal injunctions in the States, should be appraised against this backdrop. So, what is instantaneous democracy? What is wrong with it?

The Quest for Authenticity and the Pathology of Instantaneous Democracy

Reflecting on the rise of populist politics in 2017, in a contribution to an I-CON symposium on public law and the new populism, I tried to shed light on the impact of social media on the process of social acceleration – the latter of which had received attention from social scientists (here and here) – and on constitutional democracy. In that article, I first look beneath the surface of populism’s antiestablishment feelings. While populist forces arise when the mainstream parties in power fail to deliver throughout multiple electoral cycles, it is parties and other mediating institutions, not democratic election per se, that are targeted in the populist reaction to democratic establishment. Mediating institutions are to blame for their failure to give voice to the authentic opinions of the people. Yet, despite this surface similarity of such populist discontent to the classical complaint about the agent’s betrayal of the principal in representative democracy, I argue that what is distinctive of the populist attitude towards mediating institutions is its appeal to authenticity. 

Notably, populist politicians do not claim to better represent the people in the sense that they interpret what the people say and think more faithfully and render it in wiser policy choices. Rather, they profess to represent (or rather instantiate) the people’s authentic will through their own acts and more importantly, their character, when they can persuade the people to identify with the populist movement centring on the leader’s words and deeds. By virtue of authenticity, populism does not just solve the principal-agent problem but rather dissolves it altogether. Thus, a populist politician needs to create a politically constructed character that is authentic, ie, both unique – to allow himself to stand apart from the populace – and familiar enough – to not alienate his followers – through the prism of which (political) ideas, (reform) proposals, and (policy) plans all fade into his character traits as depicted in his personal story. Yet, to make the authenticity appeal work, the populist political start-up (or veteran) must find a direct link between himself and the people. Without such a link, the populist politician hardly succeeds in making the people believe that he is their messenger, while finding themselves in his character, as his effort will be lacking in presenting his personal traits as the evidence of his authenticity when he tries to give voice to them. And, this is where social media enter the scene in the current wave of populist politics.

Notably, self-claimed authentic political demagogues have long aspired to a direct link with the people. Yet, at most times, they felt frustrated by their messages waiting to be carried and spread by some medium, only to see their authenticity appeals get lost in the changed political dynamics amid the wait. With the coming of the age of social media, the wait finally ends. Now politicians find the missing direct link with the people in social media. In that virtual social space, politicians and the people can bond together by a simple finger touch. With the pervasive simultaneity of political communications, politics has been more or less demystified, while the populist leader’s every move is made instantaneously transparent. Moreover, driven by the social media-powered new social acceleration, network TV channels and cable news outlets intensify the cult for personal transparency through real-time visual representation. Yet, such transparency does not bring about more political accountability. With unmediated transparency comes the populist leader’s claim to authenticity in his full display of political power that reflects his unfiltered daily character traits in which his targeted people find themselves. Apart from his instantaneous messaging through social media, which had started off in his first term, President Trump’s nearly daily live conduct of international diplomacy and domestic governance from the Oval Office as broadcast around the globe attests to the arrival of instantaneous democracy.

Rethinking Judicial Remedy in (Dangerous) Times of Instantaneous Democracy

Characterized by directness and immediacy, instantaneous democracy poses various challenges to constitutional democracy. Concentrating powers in the head of the executive power is just the most evident populist disease. As I have discussed elsewhere, democracy is not only about giving legitimacy to the ruler but also about enabling a link between governance institutions and the people in a constitutional order through which institutional learning required for good governance can develop and the societal capacity for reasonable judgement can grow. Yet such societal dynamics that give rise to democratic learning are far from running a race against time. Rather, democratic learning takes time. Thus, apart from the (self-)aggrandizement of the executive power, the process of democratic learning at the heart of constitutional governance suffers under instantaneous democracy as policy decisions are likely to be taken as if the decision maker is in an endless race against time. It is against this backdrop that the judicial role in issuing remedies needs to be reconsidered.

Notably, in contrast to the political branches, the court is not designed as a responsive institution vis-à-vis public opinions – at least, the court does not carry out its function in a purely responsive way. Moreover, the judicial proceedings have long invited criticism for their slow pace. Counterintuitively, combined with the court’s not-so-responsive institutional character, the inbuilt institutional deficiency of the judicial proceedings can be a structural asset for democratic learning in constitutional governance in the face of new populism. As noted above, democratic learning relies on knowledge of the effect of the proposed contentious policy, which only becomes clear after reflection, deliberation, and debate. Moreover, the moral repugnancy of some unconstitutional measures only becomes concrete and real in the public eye after their impact on individuals and families is fully displayed and digested. Only then can the authenticity of public support of such measures be tested. In other words, a morally repugnant measure may gain ostensible popular support when it is put in place in a rush. With its moral repugnancy fully exposed and learned by the public, it may well be rejected. In both cases – the contentious policy and the morally repugnant, and likely unconstitutional, measure – the slow progress of the judicial proceedings allows the court to operate as an institutional decelerator to help restore the rushed process of democratic learning. Apart from its potential role in regenerating democratic learning, deceleration by judicial intervention may allow opposition forces to mobilize and regroup themselves, (re)opening frontiers for new political contestation. Against the reflexive process of judicial intervention and democratic (re)consideration emerges the new role expected of judicial remedy.

To play the role of institutional decelerator in the continuing move towards instantaneous democracy, the court’s equity power to issue early injunctions before the merit of a case is settled, including universal injunctions, becomes more important. It bears emphasis that by issuing injunctive relief at such an early stage, the court is not called upon to substitute its decision for that made through the political process. What the court is expected to do with its power over such judicial remedies under the guidance of institutional deceleration is not to set aside the contested policy or law but rather to make room for the learning function of constitutional democracy to fully play out. Focusing on individual complainants under the guidance of an unduly rigid, original understanding of equity in CASA, SCOTUS has lost sight of the big picture of the role of judicial remedy in the context of emerging instantaneous democracy that constitutional governance finds itself in.

In Lieu of a Conclusion: Remedying (Instantaneous) Democracy with Judicial Deceleration 

To defend the CASA majority’s restriction on universal injunctions issued by lower federal courts, Justice Amy Coney Barrett notes that ‘the Judiciary does not have unbridled authority to enforce [the Executive’s] obligation [to follow the law]’. As justification for curbing universal injunctions, this indictment against judicial supremacy – in the name of rejecting imperial judiciary – has been criticized for its undermining effect on the rule of law.  Leaving aside the normative implications of Justice Barrett’s foregoing position to the judicial role in general, it is doubtful that the judicial power alone can effectively make the executive follow the law by an order, especially in times of populist uprising and democratic backsliding. Neither the valued judicial authority nor the court’s idealized power to enforce is guaranteed with or without the judiciary’s power to issue injunctive remedies, whether they are universal or not. Nevertheless, with its power over judicial remedies, the court can be remedial to democratic processes in times of instantaneous democracy. Curbing federal judges’ power to issue universal injunctions, SCOTUS not only likely renders judicial relief less effective but also dismantles an institutional decelerator on the dangerous move towards instantaneous democracy. It is in this context that the significance of Trump v CASA should be appraised.     

Dr Ming-Sung Kuo is a Reader in Law, University of Warwick, UK.

Suggested citation: Ming-Sung Kuo, ‘On the Dangerous Road to Instantaneous Democracy: Judicial Remedy and the Dismantling of Institutional Decelerator in Trump v CASA’ IACL-AIDC Blog (3 July 2025) <https://blog-iacl-aidc.org/2025-posts/2025/7/3/on-the-dangerous-road-to-instantaneous-democracy-judicial-remedy-and-the-dismantling-of-institutional-decelerator-in-trump-v-casa>.