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PaperclipPerfector  4d ago (text post)   19240 thread views

Culture War Roundup for the week of May 12, 2025

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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?

Bagley: I suppose it’s a consequence of having developed a position over time and across administrations. What it means to have a set of principles is that they don’t change just because you happen to dislike the inhabitant of the White House.

I think a lot of people — and I’m not speaking of Professor Frost here at all — come to this issue out of righteous indignation against the president of the opposite political party, and that’s actually my big concern.

We want to put our faith in these judges, but these judges are just people too. There’s 500-plus of them, and they’re scattered all over the country. Many are smart. Many work hard. Some are dumb. Lots are political. Many are just outright partisan hacks.

All you need to do in order to get a nationwide injunction is file your case in front of one of those partisan hacks, and then we’re off to the races — with these immediate appeals up to the Supreme Court, where hard questions are decided in a circumscribed manner and where the courts themselves reveal a kind of highly partisan pattern of judging that calls the entire judiciary into disrepute.

I would love this birthright citizenship [executive order] to be blown up into about a billion pieces. It is a moral, ethical, legal, constitutional travesty. I don’t know that the engine to do that is a nationwide injunction. In fact, I’m pretty sure it’s not.

That said, I think no one who’s looking at 21st century America right now thinks to themselves, “Things are going great.” There are a lot of deep problems. I think our democracy has misfired in a pretty profound way, and some of the institutional constraints on the president that previously held are starting to give way.

I don’t think we give up much by giving up the nationwide injunction. I think we help right the ship, but I don’t know that I know that for sure.

And I think anybody who comes into these debates with extraordinary confidence, one way or the other, about the long-run consequence of doctrinal shifts like this, ought to have their head checked. I have a view, but, like many things in life, it is provisional and what I think is a principled and thoughtful view.

But lots of other people, who are also principled and thoughtful disagree, with me.

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?

Frost: First, I do not think there’s a single judge that exercises this power — in the sense that, yes, that judge issues the nationwide injunction in the district court, but it can be immediately appealed up to an appellate court of three judges, then immediately taken up to the U.S. Supreme Court, as was the case in the mifepristone case, as is the case in most of these cases.

You could say, “Well, we’re now forcing the Supreme Court to decide cases more quickly.”

Wait to see what happens to the court if each and every one of the children born in the United States has to sue to protect their citizenship. Courts will be overwhelmed in that situation.

The consequences for courts are not always great when they have to quickly respond to nationwide injunctions and reverse them, but they can do that. If it does quickly get reversed, then it’s just a couple of weeks, a month or two, that it’s in place.

I will also say that if forum shopping is your problem, your solution is to address forum shopping. And there are proposals out there by the Judicial Conference for more random assignments, and I absolutely favor those. I think forum shopping is a problem. I think politicization of the courts is a problem, but the answer is not get rid of nationwide injunctions. The answer is end forum shopping.

Nationwide injunctions are literally saving our nation at the moment.

It’s not just birthright citizenship, although that is the poster child for nationwide injunctions, and it’s an excellent vehicle in which to consider the issue for someone like me, where I’m worried about a world without them.

Think about the Alien Enemies Act. We have an administration that says it can deport people without due process, and when it makes a mistake, it’s too bad, too late.

If that could not be stopped through an injunction, I think we should all be afraid. And that’s one of many, many examples of an administration that wants to unilaterally rewrite the law without the impediment of Congress or any sort of legal process. Without nationwide injunctions, each and every person potentially affected would have to sue to maintain the rule of law.

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:

I hear Professor Bagley and the other critics as to the downsides, and here are the downsides.

While the nationwide injunction is in effect, the law is being stopped. This is the frustration Professor Bagley was [describing] about how the government can’t implement its policies. And maybe six, seven, eight months to, at most, a year, the Supreme Court rules and says, “Actually it’s a perfectly legal policy,” and we’ve lost a year.

I recognize that as a cost. However, I’d rather live in that world than the world where a lawless president, or even a president that’s edging toward that, [can act without that constraint].

Obama and Biden did a few things that I thought were lawless, even though I liked the policy, like Deferred Action for Parents of U.S. citizens, which was enjoined by a nationwide injunction. That was an Obama policy.

The imperial presidency is a reality. They are all trying to expand their power, and I’d rather slow them down with the loss of some useful policies that I think are good at the end of the day and prevail in court, than allow for running roughshod over our legal system, as this administration is trying to do.

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:

And the trouble is, in our hyper-polarized environment, that kind of claim is made by partisans on both sides of the aisle whenever somebody is in office who they disagree with. So it is, I think, a comforting thought that we can just leave the door open a little bit, but if you leave the door open a little bit, you’re actually going to get the same cavalcade of nationwide injunctions that we’ve seen.

I’d be open to a narrower rule if I’d heard one that I thought could restrain judges that were ideologically tempted and willing to throw their authority around. But I haven’t seen it, frankly, and, until I do, I’d be pretty reluctant to open that door at all.

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?

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.

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 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.

If it is all going to end up decided by SCOTUS anyway this seems fine. Better one rule while we sort out the litigation than possibly 96. The government has the resources that individual plaintiffs certainly don't.

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).

This is true if the hypothetical plaintiff has the resources to press their claim in court. Unless you already have an injunction against the government, in your own name or as part of a class, the government is free to force you to engage in duplicative litigation and drain your time and resources. The government, at oral argument, would not even commit to respecting a 2nd Circuit precedent in the 2nd Circuit!

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.

The problem is that anything that has a mandatory hearing before the Supreme Court is going to put a massive strain on their case load. Voting Rights Act cases already have this and it’s a huge pain.

But I think it’s necessary for such a system to exist because there are some decisions that it’s extremely hard to undo

There are also some injunctions that are hard to undo, like an injunction against not spending money.

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.

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.

I think that does make a lot of sense. But my main concern is to limit the ability to issue a national injunction to “break-glass” levels of emergency. The idea being that the principle in question is so important to the public good, Justice, or good government that allowing it to continue before SCOTUS takes it on would result in grave harm. I don’t want it completely ended, but at the same time I don’t want it to be used casually as a “we don’t like this” measure.

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