"Must SCOTUS Injunctions Abide By Precedent?"

A very interesting post by my former colleague (now at the University of Virginia) Richard Re.

From Re's Judicata:

There now appears to be consensus at the Court that it may issue injunctions not only when claims are "indisputably clear," but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable.

Indeed, it is fair to say that every sitting justice has recently voted for at least one "anti-precedential injunction," that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that "newly minted rights … cannot justify an emergency injunction pending appeal." …

The whole thing is much worth reading.