The national injunction is moving from a simmer to a boil. Here are the major developments:
- Today, in Trump v. Hawaii, the majority did not reach the scope of the injunction. In a concurring opinion, however, Justice Thomas launched a ten-page critique of the "universal injunctions" being given by federal courts. He emphasized not the policy weakness of these injunctions, but their lack of legitimacy--their relative novelty, their inconsistency with a claimant-focused view of the judicial power, and their lack of connection to equitable principles. Justice Thomas's opinion has immediately become the leading judicial critique of the national injunction. At various points the opinion cites my article on the subject; I am not an indifferent observer about the arguments in the opinion. By contrast, in a dissenting opinion, in a footnote, Justice Sotomayor (joined by Justice Ginsburg) endorsed the lower courts' national injunction. What is striking is how cautious the endorsement was—only "[g]iven the nature of the Establishment Clause violation and the unique circumstances of this case."
- Tonight the Seventh Circuit granted a partial stay of the national injunction in the Chicago sanctuary city case. The Seventh Circuit had already decided to take the case en banc, but had not stayed the injunction, and the Solicitor General had filed an application for a partial stay with the circuit justice, Justice Kagan. (Steve Vladeck had an excellent roundup, current before tonight.) But action by the Supreme Court is no longer necessary. One could quibble with the Seventh Circuit order, which refers to the injunction as "STAYED as to geographic areas in the United States beyond the City of Chicago" [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.
- Meanwhile, in the Southern District of Texas, Judge Hanen is still considering whether to issue a national injunction that would directly conflict with other national injunctions that require the Administration to maintain the DACA program.
- Briefing continues in Nevada v. DOL, the Fifth Circuit case about contempt sanctions against plaintiffs' attorneys for bringing suits that the district court considered inconsistent with its national injunction. That national injunction was about a Department of Labor overtime rule and was issued near the end of the Obama Administration.
- Finally, too little attention has been paid to the implications for the national injunction of a case decided last week: Gill v. Whitford. (Exceptions are posts by Stephen Sachs and Howard Wasserman.) In Gill, the Chief Justice's opinion twice underscores—and even describes as a "rule"—the teachings of Lewis v. Casey that remedies should be plaintiff-focused. Moreover, the Court's opinion says that "[t]he Court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it." And its concluding exhortation is "that 'standing is not dispensed in gross': A plaintiff's remedy must be tailored to redress the plaintiff's particular injury." In short, Article III is not just about standing but about remedies, and the remedies given must be tailored not to abstractions like the extent of the violation by the defendant but to the "the plaintiff's particular injury." One could write a brief against a national injunction almost entirely from Gill. My reading of Gill is that it puts the federal judiciary on a glide path to ending the national injunction.
If defenders of the national injunction could choose their terrain, they would want two battlefields. One is policy: there are policy arguments for national injunctions, and there are policy arguments against them. (For the policy case in favor, see Amanda Frost's forthcoming article.) The other terrain is a judicial-supremacist, law-declaration conception of the judicial power. In that conception, what is central is that judges declare (or make) the law, and what is incidental is that it happens in cases. That conception fits the somewhat extravagant metaphor of judges "striking down" statutes. If a judge can "strike down" a statute—KO it, obliterate it—then why not have a national injunction against its enforcement?
But other terrain is being chosen by the justices. Gill requires that the national injunction be squared with a claimant-focused, plaintiff-injury-limited conception of the judicial power—the kind of conception that runs through cases like Frothingham. In his concurring opinion today, Justice Thomas also asked insistent questions about whether the national injunction has a basis in equitable principles. Whether the defenders of the national injunction are able to meet these burdens will likely be decisive for its future.