Justice Kagan on Universal Injunctions in 2022

Justice Kagan said "it just can't be right" that a single court judge can stop a federal policy in its tracks nationwide.

Back in 2022, while speaking at the Northwestern University Law School, Justice Elena Kagan addressed the issue of universal injunctions, in the context of noting how the issuance of such injunctions forced the Court to consider more questions on an expedited basis through the emergency docket. Politico reported on the comments at the time, as noted by Sam Bray here.

Based upon the video, here are her remarks:

in in recent years some district courts have issued nationwide injunctions, and this happened in the Trump administration and it has also happened in the Biden administration so this has no political tilt to it, but some district courts have, you know, very quickly issued nationwide injunctions to stop a policy in its tracks that . . . the President and/or Congress has determined to be the national policy, and it just one district court stops it, and then you combine that with the ability of people to forum shop to go to a particular district court where they think that that will be the result and you look at something like that and you think that can't be right that one district court, whether it's in you know in the Trump years people used to go to the Northern District of California and in the Biden years they go to Texas, and it just can't be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years that it takes to go through normal process.

One question is what Justice Kagan meant by saying that "it just can't be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years." Was this merely a policy view -- that allowing individual district court judges such power is no way to run a railroad -- or was it a view of the law? And, if the latter, did Justice Kagan's view change? Was she persuaded by the briefing, subsequent academic scholarship or Justice Sotomayor's dissent? Or was there something about Trump v. CASA that justified an exception from a more general rule? As Justice Kagan did not write separately in that case (and, indeed, did not write much this term), I don't think we know.

The full video of Justice Kagan's remarks is available on YouTube, and embedded below. The relevant portion begins around the 40-minute mark.

Comments

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Her political 180 just further supports the widespread belief of a partisan justice system.

Not many think it's fair anymore. At least among those with open eyes.

[JasonT20]

Adler's point is that her remarks are not as clear as they seem. I agree with Adler that she could either have been talking about it as a normative problem to have district court judges blocking federal government policy across the whole country (i.e. it is a bad idea to set things up this way), or she could mean that it "just can't be right" to interpret judicial power that way according to the Constitution and federal law and court procedures as written.

Personally, I think the very language of saying, "you look at something like that and you think that can't be right..." is clearly referencing someone's feelings about these injunctions rather than it being a real analysis. She's talking about people's gut reactions to those kinds of rulings, and she is also clear that the additional problem of forum-shopping makes any issues with them much worse.

This is a problem that requires thoroughness and objectivity. Kagan's remarks seem ill-advised because they tee up a negative emotional reaction to these rulings but don't follow that up with details and careful legal reasoning. I think that any remarks about that should have been to acknowledge the controversy and arguments surrounding nationwide injunctions without picking a side, or said nothing. I always thought that judges were supposed to avoid giving strong hints about how they might rule on an issue, since that undercuts any confidence that they will be objective and give all parties to a case a fair hearing. So, to the extent that Kagan did a "180" on this, I think she should never have been saying anything outside of the Court that staked out a position to begin with.

Anything that alters the ability of courts to order remedies for potentially unlawful acts by the government has to be thought through extremely carefully. Being upset that a single district judge blocked some Trump order or overturns FDA approval of a drug can't be the reason to decide that district judges shouldn't have that power. It needs to be a systematic review of how the checks and balances will work across all kinds of cases and for all kinds of petitioners.

[Widmerpool]

Jason - Nothing would have stopped Kagan from noting in her dissent her view that "this is no way to run a railroad" and inviting Congress to fix the problem. I wonder why she didn't.

[Lee Moore]

The trouble is that some folk do not believe in Amy's wise aphorism :

But as with most questions of law, the policy pros and cons are beside the point.

If your jurisprudential scheme as a judge is not indifferent to policy questions, and you believe that what can and can't be right as a matter of policy has a proper part to play in teasing out the meaning of a legal text, then the distinction between Kagan's normative opinion on universal injunctions and her legal conclusions could be aligned causally. For some folk - step forward, inter alia, Messrs Breyer and Sarcastro - the point that Prof Adler is trying to make is a distinction without a difference.

Anything that alters the ability of courts to order remedies for potentially unlawful acts by the government has to be thought through extremely carefully.

No doubt - but this a policy question, not a judicial question. For those who agree with Amy, it belongs to the legislature not the judiciary. In arriving at a judicial ruling, the judges are asked only to say what the law IS. They are not empowered to change it. Even when they appear to change the law - as in Dobbs - they are only saying what the law IS and consequently that what was previously thought to be the law was incorrect.

Thus for the judges whether the law allows universal injunctions has nothing at all to do with whether they're a good thing. The latter question may require careful thought over a number of years. The former may be obvious from no more twenty minutes thought..

[David Nieporent]

The trouble is that some folk do not believe in Amy's wise aphorism :

But as with most questions of law, the policy pros and cons are beside the point.

If only the majority had applied that to the presidential immunity case, which was 100% policy and 0% law.

[Lee Moore]

So we are in agreement. Naturally this makes me worry that I have made a mistake, but I think I’ll go with the stopped clock thing.

[JasonT20]

Not many think it's fair anymore. At least among those with open eyes.

More directly to your comment here, I largely agree that public perception of the federal judiciary has eroded tremendously. People on opposite sides of the partisan gap (like you and I, I think) both think that the judicial branch is no longer a politically neutral arbiter of the Constitution and the law (to the extent that it ever was).

The problem is that the politicians we have been electing have taken that as a reason to seek to capture the judiciary for their side rather than to seek to bring it back into its proper place. On the left side of the aisle*, we see the Federalist Society and Mitch McConnell as proof that the right has been trying to take over the federal judiciary for its purposes for more than 40 years, and that it has been very successful at doing that. But we also don't seem to fully recognize that the judiciary was seen by both politicians and voters on the right as having been taken over by the left. If the opposition has captured the courts to support their agenda, it seems perfectly natural to want to flip that to one's own side being on top. In politics, it would go against human nature to seek power only to set up government institutions that give one's opponents a fair chance to beat them.

I think that this was the noble goal that the Founding was aiming for: The obvious part is that they wanted a government that would be unable to abuse its power and violate individual rights. But they wanted to make it extremely difficult for those in control of the government to suppress opposition. And this was knowing that they would be the ones in control of the government. They were working to limit their power.

We aren't seeing that from any of the current political class, are we? None of them are saying, "Not only do I think that my opponents are abusing their power, I want to be sure that my side can't abuse it either if we win the next election." Instead, they are all saying, "We need to take power away from our dangerous opponents so that power is in the right hands. Ours."

*I didn't always think of myself as being on the left. B.T., I thought of myself as moderate or independent. I'd voted for candidates of both parties at different times, including in the same election, splitting the ticket regularly. I miss that version of our country.

[Lee Moore]

"to the extent that it ever was".

Just so. What was Marbury v Madison about, after all ?

[patiens]

She was never a judge, she has no kids. She should not be on the Court. It isn't a 180, it's called lying.

[Malika the Maiz]

What about the flip side? The make up of the court was largely the same during the Biden years, why didn’t they stop nationwide injunctions when it was district judges like Kacsmaryk issuing them against the previous administration?

[John F. Carr]

The court promptly stopped the injunction against the abortion pill.

[David Nieporent]

Well, for one thing, did Biden ask them to?

[patiens]

What would be the point of that? And what does 'largely' mean 🙂
Whatever point you are making if you aren't saying the present decision is wrong (or right) you aren't really claiming anything. Who knows why Biden vs Trump and 'largely' vs now aren't the same. Who knows

[MollyGodiva]

Kagan makes a good point. These types of injunctions are not good. But the alternative is far worse.

What should have happened: Cases that seek nation wide injunctions are sent to a panel of thee or five district judges that are randomly selected. Then it is not just one judge.

[David Nieporent]

What should have happened: Cases that seek nation wide injunctions are sent to a panel of thee or five district judges that are randomly selected. Then it is not just one judge.

Okay, but that's a reform for Congress, not something the courts can impose.

[MollyGodiva]

Courts have much leeway over their own procedures.

[Rossami]

A random panel maybe slows down the problem of forum-shopping. It does nothing to address the underlying problem with these kinds of injunctions. Courts are not a super-legislature nor are they auditor/supervisors of the executive branch. Trying to make them into those things as if they were Plato's philosopher-kings will merely move the point of oppression and abuse and will undercut the checks and balances we already have.

[DJK]

Yes. And unlike the Executive, the Judiciary is not accountable to the electorate.

[MollyGodiva]

Allowing the President to violate the law and Constitution without any recourse is not the right option.

[Bored Lawyer]

I proposed something like this.

[Riva]

This exchange also sheds some light on Sam Bray’s political motivations. The issuance of universal injunctions has “no political tilt to it”? Are you f’ing kidding me? It’s all political. Even the justice he’s questioning bases her decisions on politics, as recently made abundantly obvious.

[A Japanese Student]

As I noted elsewhere, the CASA decision appears to cover both preliminary and permanent injunctions (what she described as "normal process").

[John F. Carr]

The decision did not address the power under the Administrative Procedure Act to "set aside" agency action. See footnote 10. Courts may have the power to grant universal final relief in APA cases.

[A Japanese Student]

I'm not sure if there are five votes to keep APA universal set-aside, but yes, that is an option for now. And class actions - though they were previously not frequently used in this context.

[F.D. Wolf]

The "normal process" is a district judge can enjoin enforcement of a policy in his district, a proposition no one disputes. With a "nationwide injunction", ten district judges in ten different states can uphold the legality of a policy, but an eleventh district judge in an eleventh state who disagrees can effectively overrule all of them. It is not sound legal doctrine that any singular district judge has veto power over national policy in the entire nation.

[David Nieporent]

The "normal process" is a district judge can enjoin enforcement of a policy in his district, a proposition no one disputes.

You are, of course, entirely wrong. The CASA decision does not permit that. The basis of the decision has nothing whatsoever to do with where the injunction is in effect. It's about who it benefits.

[F.D. Wolf]

Your reading comprehension skills are as sharp as ever, as you yet again challenge an assertion no one made. I don't recall mentioning the CASA decision at all, instead addressing Kagan's comments, the actual topic of the post.

Regardless, shmendrik, you seem to become dumber, more agitated, and more tiresome with every post, and I have wasted enough time interacting with you, so you shall be only the second poster I have muted on this board. I do not wish to contribute to your agitated state. I wish you well.

[Stupid Government Tricks]

That's a silly non-excuse for not contributing to his agitated state. It's your comments which do that, not whether you see his replies or not.

[Josh R]

What does CASA say about preliminary injunctions? It's clear a district court can only provide relief to the plaintiffs. What about circuit courts and SCOTUS? Can they issue universal preliminary injunctions (on appeal)? Can the former do so within their circuit?

And, what are the answers to the same questions for permanent injunctions after final judgment? Does a district's ruling apply to all people within the district? Does a circuit court's ruling apply to all within the circuit and a SCOTUS ruling apply to all nationwide?

[A Japanese Student]

As I understand it, under CASA,

- the actual injunction can only affect the plaintiffs named in the case caption, absent class actions or APA universal set-aside, regardless of which court issues injunctions;
- however, it is true that appellate decisions - particularly one issued by SCOTUS or (if federal) CADC - are more important for practical purposes. State officials cannot rely on qualified immunity, the federal government will be on the hook for EAJA costs, and it would justify courts to issue immediate TRO/preliminary injunction should another injured plaintiff sues.

[Josh R]

Per his concurrence, Kavanaugh didn't think CASA precluded (at least) SCOTUS from issuing universal injunctions. What surprises me (if it is true) is that CASA does not permit SCOTUS to issue a universal injunction upon final judgment.

[wvattorney13]

Doesn't the precedential effect of a SCOTUS opinion have the same effect as a "universal injunction"?

I mean, I guess you couldn't hold a non-party in contempt for violating an on point SCOTUS decision but that non-party is going to lose in court and may face sanctions if he tries to fight for what is clearly a frivolous position.

Say a local restaurant owner doesn't want to serve blacks and he comes to me to represent him. Now, he wasn't a named party in Heart of Atlanta Motel and therefore no injunction runs against him but my advice would be that all of his constitutional arguments have lost and that he must serve blacks. The effect of that decision is as if it ran as an injunction against him.

[A Japanese Student]

The majority's answer to that question is "the Solicitor General says they respect SCOTUS decisions, so we don't care". At least that's how I read the footnote 18.

[gdanning]

If you watch the video, she is clearly stating that the increased use of the shadow docket is an appropriate response to the increase in universal injunctions because the alternative is to "leave it stopped for the years that it takes to go through normal process." She is not opining on the question of whether district judges nevertheless have the power to issue such injunctions.

[Bob from Ohio]

clearly!

[Longtobefree]

" . . . did Justice Kagan's view change . . . "

No, but the party of the president did - - - - - - - -

[Martinned2]

...and the willingness of the President to ignore any and all bits of the Constitution that get in his way.

[Stupid Government Tricks]

I dunno about that. Biden also ignored the parts of the Constitution which got in the way of his student loan shenanigans, and Obama executed a US citizen without due process, plus his Democrats passed Obamacare by ignoring the part of the Constitution which required that bill originate in the House.

[JohnSmith97]

As always, it is (D)ifferent when they do it.

[F.D. Wolf]

One might forgive the cynic for believing that, had the CASA case involved a Democratic president facing a seemingly endless parade of nationwide injunctions from Republican-appointed district judges, that the Court's opinion would have been exactly the same, except it would have been 9-0. One expects naked partisanship from Sotomayor and Jackson, but has come to expect a bit better of Kagan.

[Sarcastr0]

Hypothetical hypocrisy is so easy.

[Martinned2]

In fact, one might plausibly believe that the votes would have been different if it was any other president than Trump. The man is uniquely dangerous, so it makes sense that that has consequences for how the Supreme Court votes. The only problem is that it didn't have enough of a consequence.

[Stupid Government Tricks]

Every person is uniquely dangerous. Are you saying this country got into today's mess all because of Trump and nobody else?

[JoeFromtheBronx]

What "just can't be right"? Kagan states a multistep problem.

just one district court stops it ["very quickly"], and then you combine that with the ability of people to forum shop to go to a particular district court where they think that that will be the result and you look at something like that and you think that can't be right that one district court, whether it's in you know in the Trump years people used to go to the Northern District of California and in the Biden years they go to Texas, and it just can't be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years that it takes to go through normal process.

So:

[1] One district court stops it

[2] Forum shopping

[3] Leave it stopped for years.

I agree that it is a problem.

There are ways to stop each one of them. You can make it harder for the district court to stop it and/or the ability for them to do so "very quickly," except in limited cases.

You can address forum shopping.

The appeals process can prevent it from being "stopped for years."

[santamonica811]

That's my read as well. What she said is clear and (to me) obvious. No problem with a universal injunction. The problem is if there is forum shopping and there is no way to get a reasonably quick review.

Seems like a perfectly reasonably observation.

[JohnSmith97]

Or the appeals process can stop the case for years. Plenty of 2A cases waiting for circuit rulings for ~1.5 years+.

[patiens]

Kagan will say something soon that will convince everybody not to take anything she says as having a definite meaning or understandable by non-lawyers. She has all the annoying characterictics I encounter in college teaching.

[thesafesurfer]

Is anyone shocked at this hypocrisy from the imperial judiciary?