The Volokh Conspiracy

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SCOTUS reins in a national injunction

Are the days of the national injunction numbered?


Big news on the national injunction front: the US Supreme Court. has just issued a stay of the district court's national injunction in Barr v. East Bay Sanctuary Covenant, a case about the administration's new asylum policy. Two justices dissented (Justices Sotomayor and Ginsburg); at least five justices voted to issue the stay (and as many as seven). To be clear, given the posture of the case, the Court is not deciding whether lower courts can issue national injunctions. But this action is a signal of the Court's concern about the practice.

The Supreme Court's action comes after a flurry of decisions in this case, even in the last few days. The district court issued a national injunction against enforcement of the administration policy. Then a Ninth Circuit motions panel (by a 2-1) vote issued a partial stay, limiting the injunction to the territory of the Ninth Circuit, and remanding to the district court. Then two days ago the district judge decided again to issue a national injunction. Then yesterday a panel of the Ninth Circuit (I presume a merits panel) issued a partial stay again limiting the injunction to the territory of the Ninth Circuit, a kind of "Yes, we really meant it." Then today the Supreme Court acted.

A few links:

Coverage by Amy Howe is here.

The SCOTUSBlog page for the case is here.

The order of the Court, with Judge Sotomayor's dissent, is available here.

(Correction: the original post said the vote was 7-2, which was incorrect, because dissents from a motion to stay do not need to be recorded. Thank you to the two careful readers who caught this.)

NEXT: "Saved by the Militia"

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  1. Ilya Somin hardest hit.

    1. Bigots most enthused.

      For now.

  2. Technically it could be 5-4, 6-3, or 7-2 (although I agree it is likely 7-2). Not joining the dissent doesn't necessarily mean 1 or 2 more justices didn't dissent from the stay order.

  3. Glad the Supreme Court is sticking it to liberal judges that have been defying the Constitution.

    1. And after the Ninth had to benchslap one of its own twice in this case!

      I suspect the Supreme Court is getting pretty annoyed by these national injunctions which are clearly using the courts primarily to gum up the works and run out the clock.

    2. IIRC from this very blog, one of the requirements for a national injunction is likelihood of final success in the courts. It's clear such success is not likely, even beyond 5-4 decisions. And therefore the lower judges are not being honest in their application of it.

      1. Especially given that all of these rulings are based on Trump’s actions being “arbitrary and capricious.” That standard is subjective enough that no judge can claim in good faith that one arguing for it is likely to succeed on the merits.

  4. About time. The days when a single unelected district court judge can overrule the nationwide decisions of the elected president should come to an end

  5. ... dissents from a motion to stay do not need to be recorded.

    Yes, but:

    It is entirely fair and accurate to note that the stay application was referred to the full Court; that there is no indication of any Justice not participating in the ruling; that only Justice Sotomayor wrote a written dissent, and only Justice Ginsburg joined in it; and that in particular, Justices Kagan and Breyer neither joined in Justice Sotomayor's dissent nor write separately to publicly dissent on their own behalves.

    That's not, technically, a 7/2 vote. Regardless, by far the most interesting thing about Justice Sotomayor's dissent is who chose not to join it.

    1. Agree. It's most likely 7-2, and certainly shouldn't be assumed to be 5-4 given Breyer and Kagan could have easily noted their dissent.

  6. What's the over/under in hours until the next district court judge issues a national injunction in an immigration case?

    There is only 48 hours left in the week, but my guess is by Friday afternoon.

  7. Why didn't the Court let the injunction stand just within the Ninth Circuit?

    1. Why didn’t the Court let the injunction stand just within the Ninth Circuit?

      The Ninth Circuit had already denied the government's application for a complete (nationwide) stay of the district court's original injunction. In its application to the SCOTUS, the government therefore sought a complete stay — which today's order granted, both as to the district court's original injunction and its reinstatement of the original injunction's nationwide effect after a brief remand from the Ninth Circuit. It was the district court's orders that needed staying, not anything ordered by the Ninth Circuit. Implicit in today's order is that a majority of the SCOTUS found that the government had demonstrated a probability of success on appeal and, if need be, on petition for certiorari as to justify the nationwide stay. That in turn suggests that when the case reaches the SCOTUS on its merits, after further merits proceedings in the Ninth Circuit and a certiorari petition from the losing side, a SCOTUS majority may well rule on the merits nationwide, thereby ducking the question of nationwide injunctions (as it has on prior occasions, most recently over a dissent from Justice Thomas).

      1. Not to mention that the District Court, after the 9th Circuit Court had limited the injunction to the 9th Circuit, went ahead and issued another national injunction.

        I'm not surprised that Sotomayor failed to mention that little bit of info nor has she mentioned that the District Court in the 5th Circuit limited their own injunction to the 5th Circuit instead of issuing a national injunction.

  8. If Trump was half the leader he should be, he’d make clear to the judiciary that these types of rulings will not be tolerated, and the next one results in a military operation against the judge.

    1. I thank the Volokh Conspiracy for bringing unvarnished conservative thought to a broader audience than the usual Federalist-Heritage-militia-Breitbart circles.

      1. Kirkland: the usual Federalist-Heritage-militia-Breitbart circles

        You forgot the Bildebergers and the Zionists!

        1. I also omitted FreeRepublic, Instapundit, RedState, Stormfront, Hot Air, Gateway Pundit, and dozens like them. The references were illustrative rather than exhaustive.

    2. Even being right of center myself, your supposition here is wrong in every way.

      The judge at worst should be censured by the 9th Circuit. As it is, he's been nationally humiliated by being overturned not once but twice by the same court and SCOTUS ruled against his decision as well. While he may continue to rule as an idiot it is rather clear that the circuits are tired of it.

    3. As reactionary as this sounds, your comment reflects an important sentiment in society; at some point, procedural bullshit has to stop, especially while real people suffer right now. The law works, until it doesn't, at which point people switch from the metaphorical sword to the physical one.

  9. Sotomayer and Ginsburg in dissent

    The same pair that said it was unconstitutional for a state to pass a state constitutional amendment that complied with the US constitution, 14A, in Shuttee

    1. To be fair: any vote attributed to "Justice Ginsburg", should be qualified with the note that she is now merely a brain in a vat.

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