SCOTUS ends Nationwide Injunctions?

Not so fast.

Today, in Trump v. Casa, Inc., the Supreme Court finally answered the question of whether “federal courts have equitable authority to issue universal injunctions.”

The Supreme Court held they do not.

For background, nationwide injunctions – “a universal remedy whereby a court enjoins a party with respect to all persons and entities, not just parties to the litigation” – have gone from a historically non-existent remedy to one which has dramatically increased in popularity over the last 25 years. The current Trump Administration has, in particular, been a victim of that judicial overreach. Seventeen nationwide injunctions were issued against the Trump Administration in the first 60 days. Trump’s first term saw 64 nationwide injunctions. To provide context, Bush, Obama, and Biden totaled 32.

Nationwide injunctions have been roundly condemned by members of the Supreme Court, and the critics are from the left and the right, from Justice Kagan to Justices Gorsuch and Thomas. But under the guidance of Chief Justice Roberts the Court failed to act. According to Justice Gorsuch, this encouraged venue gamesmanship and sowed chaos, forcing “judges into making rushed, high-stakes, low-information decisions.”¹

The majority opinion came from Justice Barrett, who has experienced her own recent criticisms from the Right. Today gave her a temporary reprieve. Important to the Court’s analysis was the lack of similar historic remedies and how nationwide injunctions are contrary to concepts of equity and judicial power. As Justice Barrett observed, “the universal injunction was conspicuously nonexistent for most of our Nation’s history” and “were not a feature of federal-court litigation until sometime in the 20^th century.” In effect, relief will not be awarded to nonparties.

We cannot help but provide a moment to discuss Justice Barrett’s treatment of Justice Jackson. If you recall, Justice Jackson was selected as part of Biden’s fulfillment of a campaign promise: to nominate the first Black woman to the Supreme Court. While Jackson checked that box, there were always doubts on the left about her intellectual rigor and her ability to persuade. The Democrats wanted their own Scalia but instead got another Sotomayor.

And Justice Barrett proved those doubts were well-founded, saying the theories supporting a court’s authority to issue nationwide injunctions in Jackson’s dissent were not tethered “to any doctrine whatsoever” and offered “a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.” Justice Barrett criticized Jackson’s argument as being “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” And in her final dig, Justice Barrett wrote:

“Justice Jackson would do well to heed her own admonition: ‘Everyone, from the President on down, is bound by law.’ That goes for judges too.”

What the majority didn’t determine was the merits of Trump’s birthright citizenship execution order. Instead, the Court partially stayed three universal injunctions issued by three different federal District Courts – “but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue.”

The birthright citizenship question will be determined another day. (As we’ve written previously, it’s hard to see this Court agreeing with Trump on that issue.)

It is also worth noting that while the Court’s ruling is a general good and is in accord with the law and this nation’s history, there aren’t some downsides to this. Nationwide injunctions have been a tool utilized by the right against sweeping and unconstitutional actions taken by Democrats. For example, a nationwide injunction was issued by a federal court against the Biden Administration, barring them from enforcing the federal contractor COVID-19 vaccine mandate.

But this doesn’t mean that other remedies are not available. Instead of individual claims being filed with the purpose of stopping Executive actions nationally, we will likely see an increase in class actions - where a court certifies a class to which the relief will be granted, if we might paraphrase - and this might have the same effect. As Justice Kavanaugh explained, those who challenge the legality of federal statutes or Executive actions might proceed by class action “and ask a court to award preliminary classwide relief that may, for example, be statewide, regionwide, or nationwide.”

In other words, we aren’t seeing the end of nationwide injunctions just yet. Just a certain type of nationwide injunction.

1. Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600, 206 L. Ed. 2d 115 (2020).