The Supreme Court has to decide at some point. Why not now?
The Quiet Disappointments of Justice David Souter
Former Supreme Court Justice David Souter has passed away. In my latest for the Daily Journal, I reflect on his tenure. Justice Souter’s modesty, humility, and deference made him well-liked by others on the bench but left little to celebrate for those of us who believe that courts exist to protect individual liberty. In my piece, I touch on his record on the Fourth Amendment, property rights, equality before the law, and federal power.
There were moments of principle in Souter’s career. But on the whole, his record is a reminder that being a “modest” judge is not always a virtue—especially when the stakes are high.
A preview:
Last week, Justice David Souter—hiker, recluse, and former Supreme Court justice—passed away. A bookish New Englander with a preference for solitude and landlines over limelight, Souter wasn’t known for writing barnburners. Nor did he author any landmark majority opinion. Instead, he became famous for disappointing the president who nominated him.
Read the full thing here.
Birthright Citizenship before the Supreme Court
Last week, the Supreme Court heard arguments in a group of cases challenging President Trump’s executive order on birthright citizenship. That order declines to recognize birthright citizenship for children of illegal or non-permanent residents. After several courts issued preliminary injunctions against the order, the government appealed—raising an issue that has long been in its crosshairs: whether courts have the power to issue injunctions that reach beyond the parties in the case.
Solicitor General John Sauer argued that these “universal” (sometimes derisively called “cosmic”) injunctions exceed the Court’s traditional equitable authority and Article III of the Constitution. He also argued that they create a host of practical problems: encouraging forum shopping and rushed decisions, creating an asymmetry where the government has to win everywhere but plaintiffs can win anywhere (I’m not mad about that), evading class action certification requirements, increasing pressures on the Supreme Court’s emergency docket, and so on.
As Justice Kavanaugh observed at oral arguments, nationwide injunctions have plagued presidents of both parties in recent years—at least in part because congressional dysfunction has deepened and presidents have rushed to fill the gap by legislating by pen. During President Biden’s time in office, many complained about judges issuing nationwide injunctions against his eviction moratoriums, COVID-19 mandates, and student loan forgiveness. Under President Trump, others are complaining about judges issuing nationwide injunctions against his orders mandating spending pauses, mass firings, and now, limited birthright citizenship. Put simply, nationwide injunctions make it harder for the government to, well, do things—including constitutionally suspect things.
Oral argument sounded pretty spicy, but maybe everything sounds spicy when you listen to it at 1.25x speed.
Justice Sotomayor hardly let Sauer get a word in, prompting Chief Justice Roberts to jump in and ask her to let the guy finish. Even though the legality of Trump’s executive order isn’t actually at issue—the Court is only considering the validity of nationwide injunctions—she’s clearly worried about leaving children across the country with no relief and forcing them to bring multiple lawsuits to vindicate their rights, especially when she thinks the executive order is extra-unconstitutional.
General Sauer responded that there’s no “really, really unconstitutional” exception to Article III’s limit on the judiciary. And forcing legal issues to percolate through the judiciary via multiple lawsuits is a feature, not a bug.
One does wonder whether percolation would have been considered a feature and not a bug if, say, the case involved President Biden forgiving student loan debt without constitutional authority.
Justice Jackson asked why Sauer focused so heavily on the effect of universal injunctions on non-parties. In her view, once courts ensure jurisdiction over the plaintiff and defendant, they can order all appropriate relief—regardless of whether it happens to benefit others. She also said that limiting judicial relief to the parties before the court would turn the justice system into a “catch me if you can” regime, where every person has to secure a lawyer to vindicate their rights. Last, she asked how the government was harmed from the present injunction, which merely maintains the status quo.
Like Justice Jackson, Justice Kagan also was concerned about government gamesmanship (me three!). She noted that under Sauer’s system, the government has little incentive to appeal losses to the Supreme Court. Instead, it could accept a narrow loss and force others to relitigate. While Sauer suggested that class actions were an adequate substitute, he also insinuated the government would fight tooth and nail against class certification.
But Justice Kagan also had difficult questions for the plaintiffs, too. She noted that while this case presents “catch me if you can” problems (since many people expect the administration to lose in most lower courts), future cases may not be so one-sided, and percolation might have value. What then? Counsel for a group of nonprofits responded that channeling these cases through Rule 23 class actions doesn’t solve those issues; it merely changes the mechanism—and class actions weren’t designed for emergency relief or litigation on behalf of states.
When faced with a similar question, Sauer observed that class actions are a better alternative because class members are bound by the judgment, whereas with a universal injunction, many people beneficiaries can still sue again if unhappy with the outcome. (Personally, I’m more concerned about a regime where absent class members are bound by adverse rulings and have no right to bring their own suits.)
Justice Barrett asked thoughtful, nuanced questions—as she has throughout her tenure. She asked plaintiffs for a historical analogue supporting universal injunctions, which tracks her originalist roots and time clerking for Justice Scalia. She also pressed Sauer on the limits of his theory—clarifying whether the government feels bound by Supreme Court rulings beyond the named parties (he said it does) and whether it would follow at least circuit-wide precedent (he said it would… mostly).
I appreciated her directness when Justice Kagan asked Sauer about how plaintiffs were going to get this issue before the Supreme Court. When he said it would get there eventually, she pinned him down:
Justice Gorsuch suggested the Court could hold that Congress has the power to authorize universal injunctions but just hasn’t done so yet—instead of ruling that the Constitution outright forbids them.
Justice Alito noted that whether plaintiffs seek relief via universal injunctions or class actions, the same practical problems arise. He also delivered an amusing soliloquy on the “occupational disease” of judging, which he described as “thinking I am right and I can do whatever I want.”
Justice Thomas, meanwhile, kept things focused on history. He repeatedly asked both sides for a historical analogue. The government said there wasn’t one; plaintiffs pointed to tax injunctions, the “bill of peace” from the English Court of Chancery, and early-20th-century cases like Meyer v. Nebraska.
Justice Kavanaugh seemed skeptical of universal injunctions but eager to get important issues before the Supreme Court quickly. Sauer resisted that suggestion, repeating that percolation is a feature, not a bug. That might be true for the government—but not for people burdened by an unconstitutional law!
And the Chief was the Chief. If I read his softballs to Sauer correctly (always a dangerous game), he seemed to think universal injunctions are improper—but not to worry because the sky won’t fall if they’re limited.
A group of states and non-profits argued that the Court shouldn’t axe universal injunctions altogether because injunctions are sometimes necessary to provide plaintiffs with complete relief. They proposed three cases where nationwide injunctions might be appropriate: 1) when necessary to offer full relief, 2) when congressionally authorized, and 3) when other methods of getting third-party relief (like a class action) are not legally or practically available.
Justice Gorsuch dubbed the third prong the “when it’s really important” test, and all of the justices seemed wary of giving judges a free-wheeling ability to issue nationwide injunctions, especially given how many times the Court had warned them to tone it down.
The Court seems poised to limit universal injunctions, though (I hope) not eliminate them altogether. I thought the plaintiffs’ best argument was that the Court shouldn’t shove all cases into a class action when it’s ahistorical and may draw into question other jurisdictional remedies that are often necessary. Instead, they said, the Court should simply figure out some limiting principles.
**Heard at Oral Argument **
JUSTICE GORSUCH: —I need all the amici I can get.
Coda on Universal Injunctions v. Class Actions
On Friday, the Court released an opinion that might be a preview to just how the class action thing is going to work if universal injunctions are given the boot.
Background: President Trump recently invoked the 1798 Alien Enemies Act (AEA)—a rarely used statute authorizing the removal of foreign nationals during wartime—to justify deporting members of the Tren de Aragua gang. A group of detainees filed a class action, arguing the AEA doesn’t justify their removal. Facing imminent deportation, they sought emergency relief from the district court. When the court didn’t act fast enough, they claimed constructive denial and appealed directly to the Supreme Court.
On Friday, the Supreme Court held that the Fifth Amendment requires some due process before removal, even under the AEA, and that process must be sufficient to find counsel and file a habeas motion. Given the government’s representation in an earlier case that once people are removed from this country, there is nothing the government can do to get them back, it said that 24 hours’ notice is not enough. But beyond that, the Court declined to say how much process is due. The Court also granted an injunction against any deportations while the case proceeds, which preserves its jurisdiction while all of that due process stuff is figured out and while courts make determinations about the merits of the plaintiffs’ AEA claims.
During the birthright citizenship oral argument, there was some concern that class actions were not made for Rule 23 relief, but here, the Supreme Court granted relief to the putative class—offering a glimpse of how things might unfold post-universal injunctions.
I always love a fleeting line expressing skepticism towards the government—something we civil rights attorneys rarely get. So I appreciated this one:
We recognize that the Government “has agreed to forgo removing the named petitioners pursuant to the AEA while their habeas proceedings are pending.” But we reject the proposition that a class-action defendant may defeat class treatment, if it is otherwise proper, by promising as a matter of grace to treat named plaintiffs differently.
That is, the Court would not allow the government to get out of an injunction by promising to behave.
Justice Kavanaugh concurred to say he thought the Court should just grant the case on the merits now. This echoed some of his statements during the birthright citizenship argument. I kinda dig it! Enough with the percolation. The Supreme Court has to decide at some point. Why not now?
Justice Alito dissented, joined by Thomas, chastising the Court for (in his view) accepting a case over which it had no jurisdiction, and for acting before action was warranted. He believed that the plaintiffs were a little too hasty in trying to force the district court’s hands, and he did not believe that there was any real threat of deportation warranting their actions (this, despite that apparently some of them were even driven to an airport before the government apparently thought better of it and turned around). He also didn’t think a habeas corpus petition can be pursued in class form. The last few paragraphs were pretty feisty.
**Filed Under Other Cool Things **
In addition to my piece on Justice Souter, I recently published an op-ed on how “disparate impact” theory is being weaponized to punish small businesses, including an entrepreneur who built a moving company from scratch when he was just a student. It’s a crazy tale about how civil rights law is being turned on its head in ways that undercut the American Dream. Truly, you have to read about it to believe it.
PLF was mentioned during oral argument at the Supreme Court the other day. Always fun to get a shoutout from counsel at the marble palace.
We are entering the end of the term, when all of the big ones come down. Prepare for some bangers…
