The Volokh Conspiracy

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Is the Bell Tolling for Universal Injunctions?


Yesterday the Court stayed most of the district court's injunction in Labrador v. Poe, narrowing the injunction so that it protected only the plaintiffs from the enforcement of Idaho's statute restricting surgeries and other kinds of medical interventions for minors related to gender identity. Accompanying the Court's stay were three opinions about universal injunctions. Labrador v. Poe is an important development and it starts to clarify the Court's direction.

Note that in this post I will refer to "universal injunctions," meaning injunctions that prohibit the government's application of a law or regulation to anyone, not just to the parties and those represented by parties. In other words, the category "universal injunctions" includes national injunctions and also their state equivalents (i.e., it includes nationwide and statewide injunctions), but it excludes the distinct question of vacatur as a remedy under the Administrative Procedure Act. Using the term "universal injunctions" is helpful because it is what is squarely at issue between the justices in Labrador v. Poe: the case is about an injunction prohibiting enforcement of a state law against anyone, and the justices discuss the power to do this as a matter of equitable principles, leaving to one side the question of whether those principles are altered by the APA.

Here is where the justices fell:

  • Three justices (Gorsuch, joined by Thomas and Alito) concurred in the stay that narrowed the injunction to be plaintiff-protective, and their opinion offered a clear rejection of universal injunctions.
  • Two justices (Kavanaugh, joined by Barrett) concurred in the stay, and spoke primarily to how the Court should think about stays of lower-court injunctions. This opinion did not fully answer the question of universal injunctions, but it expressed skepticism ("As I see it . . ."; "In short, a rule limiting . . ."; and especially footnote four).
  • The Chief Justice did not indicate how he voted, so if he concurred in the stay the vote was 6-3, and if not it was 5-4. It is more likely given the Court's practices for unidentified votes that he concurred in the stay, but either is possible.
  • One justice (Kagan) dissented from the stay without opinion. That does not indicate a position on the universal injunction question, since it is consistent with a number of different possibilities, including (1) a view that universal injunctions are not permissible but Idaho failed for substantive or procedural reasons to make a compelling case for a stay; or (2) a view that universal injunctions are permissible, and there was on these facts no reason to think that the grant of a universal injunction was an abuse of discretion.
  • Two justices (Jackson, joined by Sotomayor) dissented from the stay. They emphasized debate on the history of universal injunctions, and that the questions raised by these injunctions "are contested and difficult."  Their disagreement with the majority was about how stringent the standard should be for stays of lower-court injunctions, how deferential the Court should be, and whether the injunction in this case actually was a universal injunction at all (as opposed to one that was no broader than necessary to protect the plaintiffs).

Brief observations:

  1.  This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions.
  2. There is a striking asymmetry in the positions of those seven: three against universal injunctions, two skeptical of them, and two calling the question undecided and difficult. No one offered a first-principles defense of what has become the status quo in lower courts only since the last part of President Obama's second term.
  3. In terms of arguments, the opinions were careful, and I was especially impressed at the absence of two straw men. First, it's sometimes said that without universal injunctions there would have to be individual suits for every affected person–but that ignores the role of precedent, and both the Gorsuch and Kavanaugh concurrences recognized precedent's role for how a judicial decision reaches out to non-parties. Second, it's sometimes said that the position against universal injunctions requires one to think that an injunction cannot have any incidental benefit for non-parties. That isn't so. An injunction that requires A to clean up a nuisance afflicting neighbor B might also have good benefits for neighbor C. And Justice Jackson made exactly that point (footnote 3).
  4. In terms of revealed preferences, what is new in Labrador v. Poe is several-fold. Justice Alito joined Justice Gorsuch and Justice Thomas in opposing universal injunctions, I think for the first time. And it was I believe Justice Jackson's first opinion about universal injunctions since joining the Supreme Court: it offers a measured assessment of the debate and not only criticizes the concurring justices (it is a dissent), but also calls for restraint among the lower-court federal judges who are giving universal injunctions (the paragraph with "I see some common ground"). Justice Kavanaugh's opinion reflected his consistent skepticism on injunctions against state laws that run beyond protecting the plaintiff, as well as his inclination to distinguish the injunction question from the APA question–both themes previously appeared in his statement respecting the denial of the application for a stay in Griffin v. HM Florida-ORL, LLC.
  5. It makes sense to think about the injunction question separately and first, since the APA question adds additional layers and complexities to the core issue of equitable power in the absence of a statute. That is exactly what the Court is doing.
  6. It's interesting that the question was about an injunction against a state law. There have been important opinions by Judge Stras (in dissent) and Chief Judge Sutton that have extended the critiques of national injunctions to their state counterparts. The opinions of the justices in Labrador v. Poe are a measure of vindication.
  7. There are plenty of other important strands in all of these opinions, including thoughtful contributions on when stays from the Supreme Court are appropriate and the impossibility of entirely avoiding the merits, on the emergency docket, and on forum-shopping (as Justice Gorsuch correctly says, "In universal-injunction practice, . . . [j]ust do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone.").

I'll close by quoting the incisive final paragraph of Justice Gorsuch's concurrence:

Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today's decision wrong, it makes it wrong in the best possible ways, for "good judicial decisions are usually tempered by older virtues." DHS, 589 U. S., at ___ (slip op., at 4).