The Volokh Conspiracy

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McConnell and Schumer Offer Dueling Approaches To Judicial Reform

McConnell's bill would ensure that no one can benefit from nationwide injunctions. Schumer's bill would ensure that liberal litigants still benefit from nationwide injunctions.


One of the few silver linings on the Judicial Conference's ill-fated "guidance" document is that the judges have stimulated debate in the legislature–where these debates belong. Now, the senate leaders of the Democratic and Republican parties have introduced judicial reform bills. I have not obtained a copy of Schumer's bill, though the New York Times offers this description:

Senator Schumer's bill tracks the guidance last month from the Judicial Conference, the federal judiciary's policymaking body. It would end the most targeted form of judge shopping, where plaintiffs game a district's case-assignment system by filing in a small division staffed by one or two judges.

The Schumer bill, as I understand it, would in no way limit the remedy that a particular judge can issue. It would simply limit which judges can issue that remedy. Again, the "random" reassignment will necessarily take cases away from judges in remote outposts, and transfer those cases to judges in urban areas. That is a feature, not a bug of the Judicial Conference's policy, and now Schumer's bill. And nothing will diminish the ability to draw a favorable court in San Francisco, Green Belt, Portland, and a host of other friendly venues.

Senator McConnell's bill, which I do have copy of, addresses the actual underlying problem: single judges immediately altering nationwide policy. The Times explains:

Senator McConnell's bill does not address concerns about plaintiffs who strategically file in single-judge divisions. Instead, it seeks to curtail the power of a single district court judge to issue a nationwide injunction and block federal policy across the entire country. The bill would limit the scope of district-court rulings to the parties in the case, or similar parties within the borders of the district. If a federal judge found that a U.S. immigration policy were unconstitutional, for example, that decision would not, under Mr. McConnell's bill, have any immediate effect outside the borders of the judge's district. The McConnell bill also would set new limits on where litigants in patent cases and debtors seeking bankruptcy can file their cases.

Here is the text:

"Notwithstanding any other provision of law, a district court may not issue any order providing injunctive relief unless such order is applicable only to—

"(1) the parties to the case before the court; or

"(2) similarly situated individuals in the judicial district in which the district court has jurisdiction."

If district courts could not issue universal injunctions, the incentive to forum shop those judges would be far, far less. It is not clear that this bill would apply to APA vacatur under Section 706. It would be useful for Congress to clarify the scope of Section 706 relief in another policy.

Professor Steve Vladeck criticized the McConnell bill:

Stephen Vladeck, a professor at the University of Texas Law School, said that Senator McConnell's proposed elimination of nationwide injunctions would go too far. "The most sensible view is that there are too many, but not that they should be none," he said. "To say 'no more nationwide injunctions ever' is to solve the wrong problem."

Let's be very clear here. Under the Schumer bill, the California Attorney General can still reliably obtain nationwide relief against a Republican President by filing in the bastion that is NDCA. But the Texas Attorney General will be curtailed in his ability to seek similar relief against a Democratic President by filing anywhere in Texas. The Schumer bill, much like the Judicial Conference policy, fixates on the specter of "judge shopping" without even recognizing how the forums are stacked in urban areas.

The McConnell bill has the virtue of addressing the underlying problem in a way that would impact both sides of the aisle equally. The McConnell bill also addresses actual judge shopping in bankruptcy and patent cases.

At bottom, we are left with nationwide injunctions for me but not for thee. Or, my nationwide injunctions are good and yours are bad.

For what it's worth, the Supreme Court could actually do something to reform nationwide relief, instead of just complaining about it on the emergency docket. Chief Justice Roberts is fine with the D.C. Circuit issuing a dozen vacaturs before lunch, but heaven forbid a few judges in Texas issue them. And if Trump wins the election, all voices about limiting nationwide injunctions will immediately silence.

I am working on a series of proposals for judicial reform that would weaken both sides equally. For any bill to pass, it cannot be unilateral disarmament. The Schumer bill, and the Judicial Conference policy, amount to unilateral disarmament. I think the McConnell bill accomplishes bilateral disarmament.

Update: My friend Sam Bray made similar points in a post published shortly before mine:

And there is a new push from Senator McConnell to end the national injunction–which should be welcomed by Democrats and Republicans alike, because everyone has felt and will feel the pain. (The counter-argument in the NY Times article just linked to, given by Professor Vladeck, that we should have some national injunctions instead of none, doesn't work, because no one has come up with an effective limiting principle and it inevitably turns into ideological station identification: "good" national injunctions for me, "bad" national injunctions for thee.)