"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.

NEXT: A Return to Normalcy?

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  1. So the third branch is officially as political as the other two; equality?

    1. News from 1803.

    2. You missed Griswald and Roe v Wade?

  2. I feel this is a moot point, the court often doesn’t claim to change precedent anyway, even when that is very clearly what it is doing.

  3. “anti-precedential injunction,”

    Idiotic article.

    The Supreme Court is not bound by precedent. It can overrule, distinguish or ignore whatever it wants, even sub rosa.

    1. You seem disaffected and despairing, Bob from Ohio.

  4. I am not a lawyer. Maybe lawyers would see this differently. But to me, it is not disturbing that the Court would overturn a precedent. The notion of lawful governance is not disturbed when that happens, even though the governance changes. But issuing an injunction contrary to a ruling precedent which is still in force? How is that anything but lawlessness?

    1. I’m not a lawyer either, but I always looked at injunctions as something done on a case-by-case basis, with little or no need to regard precedent. I always saw it as a way of preventing irreparable changes to the status quo while a case is being litigated.

      For example if CA were to eliminate the grandfather clause in their assault weapons ban, and require all such firearms currently possessed in the state be surrendered and destroyed, regardless of the likelihood of the law succeeding or failing on the merits an injunction would be in order, since any firearms destroyed while the law is being litigated can’t be un-destroyed. Similarly the ruling striking down the ban is appropriately stayed pending appeal, since any such firearms purchased while being litigated would be almost impossible to track down and remove from civilian possession

      In the 2 cases mentions in the OP, I think an injunction is appropriate for SB8, since even fully legal abortion still subject to a “clock” where judicial relief may come too late. The lack of an injunction seems to be based on the enforcement mechanism and no governmental authority to enjoin (although I still don’t see why they couldn’t enjoin the courts from awarding any damages or legal fees in any cases that come up)

      As for the other, an injunction is less necessary as religious gathering as generally not time-sensitive and can be just as easily held after litigation is complete. In think case I think, since the lockdown were ostensibly temporary, they were trying to avoid a pyrrhic victory where the lockdowns would be lifted anyway before being found unconstitutional

      1. “As for the other, an injunction is less necessary as religious gathering as generally not time-sensitive and can be just as easily held after litigation is complete. ”

        Unless of course you consider major religious holidays. A church can’t simply reschedule their Christmas eve or Easter services for a couple of months later.

        1. But there will be a Christmas and an Easter the following year, you aren’t creating an irreversible situation by missing an annual service (at least not in the same way as a pregnancy coming to term or property being surrendered and destroyed)

          And yes I do know there are ceremonies like circumcision or baptisms that must be performed within a certain period of time, so perhaps if I were a judge I would issue a limited injunction for those types of things

          1. That’s nice.

            There will be people who want to buy the guns you want to ban the following year, so it doesn’t matter if you miss the ones buying them this year.

            And there will be women killed by their stalkers this year, because you didn’t let them buy a gun to protect themselves in time to protect themselves.

            If you’re searching for a principle other than “everything I want is good, everything you want is bad”, you’re failing

          2. That abortion you want to allow will kill an individual human being

            not letting mommy get an abortion just means she has to be pregnant for some months, after which she can give her kid up for adoption.

            So if you’re following a “do the least damage” rule, then no court could ever enjoin an anti-abortion law before the final ruling

      2. So, shorter KS:
        Every ruling that favors the Left is good, every ruling the Left hates is bad

  5. Like “knowingly”, “clear” may have several meanings. There’s “obviously determined by precedent” and “obvious to 50%+1 of the court.”

    Unfortunately, recent power grabs have demanded swift action. It does no good to rule in 2023 that a particular COVID restriction was a little too much (but not so much too much that it would defeat qualified immunity). If five justices are convinced beyond any persuasion that the Supreme Court has general equity jurisdiction to invalidate state laws, might as well use it now and spare years of litigation over SB 8.

  6. “newly minted rights … cannot justify an emergency injunction pending appeal.”

    Well, “emergency” powers are not justified when used more than 60 days past the start of the emergency. By that point, the executive and legislative branches have had time to get together and decide what’s the appropriate response.

    And if in that amount of time they can’t come to agreement, then the “appropriate response” is to “do nothing”.

    Because we’re a representative democracy, not a dictatorship. And that means that the governor / President doesn’t get to do whatever she wants, just because the State Legislature / Congress hasn’t given her the powers she wants.

  7. So you’ve got a past Scotus decision that in itself would make success on the merits unlikely. But when the Court issues an injunction to stay the status quo pending an application for a writ of certiorari, there are a few layers of the nesting doll between the injunction and the precedent.

    Cert jurisdiction exists to regulate the judiciary; things are percolating amiss, and a right needs to be rephrased, or a legal test that has allocated billions of dollars of wealth over the years needs a slight tweak. The court, wishing to asCERTain itself of the facts and the law as applied in the inferior courts, takes a look at the process and writes a teaching or two. The plaintiff who has won the certiorari lottery and been the one whose case was selected to make this zero-day patch for the judiciary arguably shouldn’t be harmed, though. The injunction runs in order to insulate them from the workings of the judiciary, not to make a statement about the law. Also: Rulings in equity are by their nature nonprecedential; it follows that they can’t conflict with precedent, unless it’s precedent specific to the equitable remedy.

    Mr. D.

    1. Thank you for that, Mr. D. It felt helpful, I think. Maybe if I knew more about equity it would be crystal clear to me.

      1. If it helps: it doesn’t exist anymore. But we’re all supposed to pretend that it does, since it’s very useful.

        Originally, when you wanted to sue someone, you’d ride up to the English court with your coconut halves and get a writ from the Chancellor, and this bit of scripting empowered one of the courts of the country to give you redress. When someone showed up with a case (literally coming from expressions like: in that case…”) that didn’t fit in with one of the authorized writs, someone would vanish behind the arras and see what they could do at court, sort of off the record, to try to make things right. Eventually, this “chancery function” of the king’s small court became its own thing, and it accorded justice in individual cases. Much like the church courts, it used oaths and personal scrutiny of conscience, since it wasn’t bound to the artificial logic of the common law. Decisions obviously weren’t precedential, but principles developed, and the court set its own jurisdictional bounds. It’s powers were wide-ranging — by early modern times it could correct records anywhere in the country. The one important check on its power is that there was never a remedy in equity when there was a potential remedy at law: if there was a writ that worked, there was no need for anyone to vanish behind the arras.

        tl:dr: There’s law, which is rules, and Equity, which is making things right. When the American bench was unified nigh on a century ago, they stopped being that. Officially.

        Mr. D.

  8. I’m sorry, you think the right to worship is newly minted?

  9. Employment Division v. Smith said you can’t get religious exemptions from neutral and generally applicable laws. It most certainly did not say that religion can be specifically targeted for disfavored legal treatment.

  10. injunction requires irreparable harm and some likelihood of success on the merits. it then balances the burden on the parties and the public interest. the stronger the likelihood of success, the stronger the case for the injunction. precedents are the best indicators for success on the merits. so usually the injunction will follow the precedents. it’s not 100% though. you could have a case, like say chaplinsky, where the precedent is obsolete and has been chipped away at and threre are clues that it no longer governs.
    you could have a case with a strong overriding public interest aspect. you could have a case where the burdens are all on the side of the moving party.

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