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Notes -
So yeah, emergency expedited Supreme Court oral arguments were today, about - contrary to what the headlines might initially seem to tell you - whether district court judges can issue national injunctions. More specifically, on if "relief" can be given to non-parties in a lawsuit, unilaterally by judge's decision. This is not on its face about Trump's birthright citizenship claims though of course that is more immediately at issue. I highly recommend this piece with a classic back-and-forth between two law professors who disagree about whether or not they should be allowed (disclaimer: both are, however, strongly against the Trump interpretation of birthright citizenship), a format I feel like is way underrepresented in today's news landscape (but weirdly overdone and trivialized on cable TV). NPR would never. Ahem. Anyways...
Some mini-history is these injunctions, as best I understand, basically did not exist until the mid-2000's when suddenly they started showing up a lot, and on big topics too. DACA, the Muslim travel ban, the abortion pill ban, various ACA issues, it has tended to cut across administrations though often the pattern is they show up against the one in power. Both professors agree that the Constitution itself doesn't really say much about the subject one way or the other beyond generalities, so it's going to rest a little more on general principles.
The central and immediate disagreement between the two seems to be whether or not you can or should trust the national government, when it loses a major case, to go back to the drawing board and/or pause the losing policy because narrowly slicing it up doesn't make sense, or whether you might as well do a nationwide injunction because of a lack of trust or simply that the application fundamentally isn't something you can legally slice up finely.
The more general disagreement, and this is the one that to me is more interesting, seems to be what to do about judge-shopping and partisan judges having disproportionate impacts, with some very different ideas about how to address that, contrasted below:
Is this frustrating for you [Professor Bagley] — for this to be the vehicle that may finally be forcing a resolution on the availability of nationwide injunctions?
So in short, it's too risky to allow judges this power.
Professor Frost, you’re probably not in disagreement on all of these policy and practical issues. Where do you see agreement and disagreement?
So in short, national injunctions are sometimes infinitely more practical, and not the direct problem at stake to begin with, more problems lie upstream. However:
It's come up here from time to time whether the slowness of the system is a bug or a feature. This debate in at least some respects reflects that tension. Is it acceptable for judges, even well-meaning ones, to pause things for up to a year? One might reasonably ask then, can the Supreme Court thread the needle and simply restrict national injunctions to more narrow occasions (as just one example, the current citizenship case where precendant including Supreme Court precedent is pretty clear), not completely get rid of them? Bagley again:
I know we've seen some vigorous discussion over the last while about activist judges. But one interesting theme I've been picking up over the last few months especially is, how much work exactly do we or should we expect the judges to be doing? For example, we had the overturning of Chevron, which ostensibly puts more difficult rule-making decisions in the hands of judges. An increase in work for them, championed by the right. But then, we had the right also start claiming that having immigration hearings for literally every immigrant would be too onerous and they should be able to deport people faster, perhaps without even (what the left would call) full due process. Too much work. And now we have the right claiming that each state or district would need to file its own lawsuit, or even assemble an emergency class action to get nation-wide relief, for an executive order with nearly non-existent precedent. An increase in work across all districts. Traditionally the right is against judicial activism in general, saying judges are too involved, implying they should work less. Maybe this all isn't a real contradiction, but still, an interesting pattern. What does judicial reform look like on the right, is it really a coherent worldview, or just variously competing interests, often tailored right to the moment? A more narrow, tailored question would be: what is the optimal number of judges, for someone on the right, compared to what we have now? Do we need more and weaker judges, or fewer and weaker? Or something else?
This part was interesting from Frost:
However, according to this CNN article:
My sense has long been that Kagan, as the only remaining Democrat-appointed justice who wasn't purely an affirmative action pick, is an the awkward position of being a genuinely capable jurist saddled with the burden of morons for ideological allies. But when supposed court experts go on Politico to explain who thinks what, and somehow a journalist at CNN manages to know more than them about the state of play, I have to wonder whether the experts are actually ignorant, or simply crafting a narrative.
Yeah it’s a good question. Other outlets like the NYT actually mentioned that Kagan quote. On the other hand, the three he did list without Kagan seem to be the ones many court watchers think will be on the losing side of a 6-3 decision, so maybe that was what he was trying to imply?
I don’t think there are full remarks available online - actually it was also Politico who were the original source on Kagan here and I will say the context does matter. The larger thrust of her answer (as framed in the original source, which is just snippets with paraphrasing or summarization) was about over-politicization of the law more broadly. I note that when Harvard Law Review last year in tackling the nationwide injunction issue, cited the exact same quote, it was as evidence that she wanted to limit judge shopping, not as directly against injunctions, though clearly the two are still intertwined. So I think there’s at least some space for Frost here.
I think an interesting point is also just how the nationwide injunction issue doesn’t quite cut neatly across partisan lines, both parties have been frustrated by it and I don’t get the sense there is broad alignment here, regardless of whatever Trump’s lawyers are arguing. They’ve twisted themselves in pretzels before.
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I think there are situations where nationwide injunctions make sense, both legally and as a matter of judicial economy, and situations where they don't. Steve Vladeck has an article discussing this in the context of the Alien Enemies Act litigation. Whether you can sue as part of a class, what process is due, whether the proclamation is even valid, are questions that currently have a range of answers across several different circuits. What is the benefit of doing litigation like this, where lots of people are similarly situated with respect to the core legal issues? I think in cases where there is a facial challenge to a government policy it makes all the sense in the world for a nationwide injunction to be an available tool. If there is no set of circumstances where a policy would be constitutional, that shouldn't have to be litigated separately in 90+ cases spanning every district (or possible defendant) in the country. On the other hand, when challenges are more as-applied I think the question is trickier. That seems like a case more ripe for class certification and litigation, for similarly factually situated plaintiffs.
I guess I tend to agree more with Professor Frost that I'd rather err on the side of enjoining the government from carrying out a constitutional policy than permitting them to carry out an unconstitutional one.
ETA:
I'm working my way through the oral argument transcript from this morning and the government's position seems... incredible? It's their position that Article 3 and the Judiciary Act of 1789 do not give courts the power to issue nationwide injunctions, including the Supreme Court of the United States. Their view is any broad based relief must come via class action. Which brings me to kind of an odd question. Can persons not yet born be part of a class action? Otherwise it would seem the government's position is every new babe must file their own lawsuit (class or individual) to vindicate their rights or else risk the government being able to violate them.
To be clear, at least in the context of the arguments today as I understand them, the major question of relief was not actually for individuals but for states who would bear a very large administrative burden if birthright citizenship were struck down (3.5 million babies a year born, would they all need to provide residency papers? That’s a lot of paperwork and paperwork costs money). So at least in the current form of the debate, unborn kids are not directly relevant (though this indication is something the SC might address, so it’s still a valid question)
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I don’t think it’s that crazy of a position. First, the problem with national wide injunctions without classes is the asymmetry of the outcome. 500 different plaintiffs can bring the lawsuit in different district courts. 1/500 needs to win if the judge gives a nationwide injunction. Contrast with a class where the plaintiffs are in fact bound by a loss.
Second, the idea the government would in fact look for not yet born residents to impose something where there is direct SCOTUS authority is a hypothetical that is so far out there compared to the first concern because the government would quickly lose (eg new plaintiff would say there is a scotus case directly on point).
I think honestly you should have the ability to do a National injunction but it should be a situation where you have to get all the plaintiffs on one case, and it should be automatically taken up by SCOTUS. The first part, to me, is reasonable because it removes the “I’ll keep going before judges until I get my way” tactic. The loss would be the end of the matter. But I think it’s necessary for such a system to exist because there are some decisions that it’s extremely hard to undo, and the courts especially, if there are multiple appeals, can move far too slowly to bring Justice. If I decide to force prisoners to work in a factory on pain of not feeding them unless they do, that’s potentially a serious breach of justice. If it takes 5-6 years for the case to wind through the courts, you have people potentially starved to death before you get a definitive answer on the matter. You can’t undo dead. But because there’s a threat of “okay, but because of the nature of the injunction, it’s only binding until SCOTUS rules on it,” people are going to be appropriately reticent to bring out that big weapon, and only use it in cases where the law is clear on the matter.
Maybe, but only if the nation injunction takes effect if the SCOTUS agrees to take it up, and is negated if SCOTUS refuses the case. Otherwise, this could easily cause more harm than it avoids.
One of the critical institutional power factors of the Supreme Court is precisely that it gets to choose it's own cases. This is power over other branches of government, but also a power over the rest of the judiciary. The Supreme Court gets to dodge politically untenable legal issues that could threaten the independence of the court precisely because it reserves the right to ignore a court for now but overrule it later. The ability to disagree later-but-not-now is a positional influence which can allow the Supreme Court members to pick their battle and avoid unfavorable contexts.
Forcing the Supreme Court to take cases is a way of exercising process control/influence to influence the Supreme Court. A coalition that is already willing to abuse injunctions through willing partners in the mid-judiciary could easily use the lack of case autonomy to force the Supreme Court into politically untenable positions that provide the political cover to either force SC endorsement, or use the refusal as the political basis to dismantle institutional independence until the political pressure can dominate. Either way undercuts the Supreme Court's institutional autonomy and pressures it into political conformity with lower courts.
Which might be fine and preferable if you think the lower courts are on your side / substantially correct. But the issue of nationwide injunctions itself- where an overwhelming majority of injunctions in the last quarter century have been against one party, despite the Presidency having been evenly split between two parties- indicate a lack of consensus that would legitimize such a position.
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From a strict textualist point of view I think this is defensible. The judicial power extends only to “cases and controversies”. There is an implication that any action which contradicts binding judicial precedent is illegal, but technically this is only an implication. The judicial branch doesn’t have authority over an action until it becomes the subject of a case or controversy, i.e. when a specific plaintiff sues over a specific action.
Practically, this creates some hurdles and perverse incentives, so I doubt the court will go for it.
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The courts should do their jobs and not do someone else's job. There's no contradiction here. It's not about the total magnitude of their power, as if there's some number that should be summed up over all the things they do and try to make sure the sums line up, it's about jurisdiction. The role of the judiciary is to interpret the law as written and intended, and apply it to individual cases, which are frequently weird and contain many facts and details that might make them edge cases or involve multiple laws that need to be combined together.
If the law doesn't say a thing and an activist judge pretends that it does by inventing new definitions for words that clearly were not what those words meant when the law was written, then they are legislating their own new laws, not actually judging. If judges go to some agency run by unelected non-judges and asks them to interpret the law for them, then those people are the judges, and the elected judges are not actually judging. They're supposed to judge, not legislate, not outsource.
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