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PaperclipPerfector  5d ago (text post)   20728 thread views

Culture War Roundup for the week of May 12, 2025

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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.

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!

A few points:

  1. If the argument is “it doesn’t matter SCOTUS will decide anyhow,” then (1) maybe not due to cert denial, (2) maybe yes but if SCOTUS sided with the 499/500, then an injustice occurred potentially for years, and (3) if trying to solve time then legal issues don’t get to evolve within multiple rulings to tease out the thorny issues.

  2. DOJ discussed long standing precedent that the general rule is they respect the opinion and judgement but they reserve the right to respect only the judgement. Notably, this is a historic precedent something that the DOJ actually pursued while Kagan was solicitor genera. However, the DOJ stated they would respect both the opinion and judgement of SCOTUS.

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