The Volokh Conspiracy

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Volokh Conspiracy

Supreme Court Refuses to Allow District Court to Halt Border Wall Construction

Yet again, the Chief Justice shows his distaste for preliminary injunctions.


Yesterday afternoon, the Supreme Court denied a request by the Sierra Club to lift a stay on a district court injunction against wall construction along parts of the U.S. border with Mexico. Justice Breyer, joined by the other liberal justices, dissented from the order.

This decision should not be much of a surprise. As I noted in a prior post, the Chief Justice believes that lower federal courts are too quick to offer injunctive relief against governmental actions, and votes quite consistently to void such relief.  Thus he has provided the fifth vote to stay injunctions opposed by both the Left and the Right.

The Chief Justice's reluctance to endorse preliminary injunctions is one facet of his conservative minimalist judicial philosophy. The Chief sees the courts as umpires, and believes the umpires should generally let play continue on the field. This means, among other things, that he thinks judicial relief should be more constrained. This leads him not only to raise the bar for preliminary injunctive relief, but also for litigants getting into court in the first place. So the Chief Justice is a hawk on standing and extremely skeptical of implied causes of action and entrepreneurial efforts by plaintiffs' attorneys to develop new theories for litigation.

On the subject of the border wall, it is worth noting that the Court passed on hearing a nondelegation challenge to the Department of Homeland Security's authority to waive various legal requirements to facilitate wall construction. Despite the Court's apparent interest in the nondelegation doctrine—and a request that the Solicitor General respond to the petition for certiorari—there were not four justices willing to vote for cert.