Across the ideological spectrum, justices have been troubled by rulings that touch everyone affected by a challenged law, regulation or executive action.
Supreme Court justices across the ideological spectrum have said they are troubled by at least some nationwide injunctions, and several have long called for the court to address their proper scope.
“It just can’t be right,” Justice Elena Kagan said in remarks in 2022 at Northwestern University’s law school, “that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
It is one thing for federal trial judges to resolve the dispute before them in rulings that are binding on the parties to the case, several justices have said. It is another to issue nationwide injunctions — sometimes called “universal” injunctions — that apply to everyone affected by the challenged law, regulation or executive action.
In 2018, in a concurring opinion in a decision upholding President Trump’s ban on travel from several predominantly Muslim countries, Justice Clarence Thomas wrote that “universal injunctions are legally and historically dubious.” He added that “if federal courts continue to issue them, this court is duty bound to adjudicate their authority to do so.”
In 2020, Justice Neil M. Gorsuch, joined by Justice Thomas, urged his colleagues to give lower courts guidance on when such injunctions were appropriate.
“The routine issuance of universal injunctions is patently unworkable,” Justice Gorsuch wrote, “sowing chaos for litigants, the government, courts and all those affected by these conflicting decisions.”
In 2023, Justice Brett M. Kavanaugh issued a statement joined by Justice Amy Coney Barrett when the court refused to revive a Florida law barring children from drag performances.
“The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against nonparties to the litigation is an important question that could warrant our review in the future,” Justice Kavanaugh wrote.
Justices Kagan, Thomas and Gorsuch all said that the availability of nationwide injunctions can spur forum shopping, the practice of filing lawsuits in friendly jurisdictions, as it takes only one judge to block a program even if several others reject similar challenges.
“In the Trump years,” Justice Kagan said in 2022, “people used to go to the Northern District of California, and in the Biden years, they go to Texas.”
Challengers in the birthright citizenship cases said that some issues, like school segregation and racial gerrymandering, required universal relief rather than case-by-case litigation. Birthright citizenship, they wrote, is also such an issue.
“The universal injunction in this case preserves the uniformity of United States citizenship, an area in which nationwide consistency is vitally important,” lawyers for the challenger wrote. “Whether a child is a citizen of our nation should not depend on the state where she is born.”
A nationwide injunction blocking Mr. Trump’s order, they wrote, “serves the public interest by preventing chaos and confusion.”
Source: Elections - nytimes.com
