The Situation: Are The Liberals Crying Wolf?

The Situation on Thursday considered the nomination to the Third Circuit Court of Appeals of Emil Bove III. 

The following day, the Supreme Court handed down 119 pages of ferocious debate over universal injunctions.

To hear the three liberal justices tell it in dissent, you’d think the six-justice conservative majority had just signed the death warrant for the rule of law in America. Justice Sonia Sotomayor describes herself as dissenting because she is unwilling to be “complicit in so grave an attack on our system of law.” She describes the outcome as “unconscionable.” And she declares that “the court’s decision is nothing less than an open invitation to bypass the Constitution.” Justice Ketanji Brown Jackson goes further, calling the opinion “an existential threat to the rule of law” and writing: “With deep disillusionment, I dissent.”

Reading their opinions, you’d never know that so-called universal injunctions have proliferated only very recently in the country’s history. While the pages of the opinion—and the scholarly community—argue about when the first true one and to what extent they are reasonably analogized to earlier practice, there is no question that their routine use is a creature of this century and that the country reined in lawless activity over the vast majority of its history without resort to them. 

You’d also never know that reining in universal injunctions has been something the solicitor general’s office has asked the court to take over a number of years and across administrations of both parties. 

And you’d never know that there is actually a fair bit to say for the majority’s opinion as a matter of history and law. 

On its face, in fact, the majority’s positions—written by Amy Coney Barrett—strike me as intuitively reasonable, more plausible, actually, than the dissent. If a person sues the government challenging the constitutionality of a policy, why should the relief awarded by a court include a blanket ban on application of the policy to anyone else beyond the plaintiff anywhere in the country—including in areas not within the territorial jurisdiction of the court? Isn’t it a problem that such an injunction gives every district court in the country at least a temporary veto over every federal policy?

I confess to having some instinctive sympathy with this view. And to be fair to the conservative majority in this matter, their suspicion of the universal injunction is not new and has been articulated over a number of years now, again, across administrations.

So why then the apocalyptic rhetoric from Justices Sotomayor and Jackson? The answer, I think, is fear of gamesmanship on the part of the Trump administration—and an intense frustration with the court majority for tolerating, even encouraging, it.

Whatever the appropriate place of universal injunctions in our system of civil litigation, the fear on this point is certainly justified. Indeed, this entire appeal to the Supreme Court reflects a kind of gamesmanship that does the court no credit to humor. 

President Trump’s birthright citizenship order, the notional subject of the instant litigation, is patently unconstitutional, a point the majority doesn’t address or consider but with which Sotomayor leads. The merits, however, are not before the court, even on a preliminary basis, because the government didn’t appeal anything other than the universality of the preliminary injunction. 

In other words, the government—having had a number of lower courts rule that its policy is grossly unlawful—is not seeking review of that finding. It is asking merely for permission to apply the policy anyway to everyone who is not a party to one of the litigations. The majority is apparently okay with that—at least as an interim matter. The dissenters are emphatically not. 

This is not the way the government normally behaves. Normally, when a circuit court of appeals rules that a policy is illegal, the government honors that ruling across the circuit unless and until it is reversed. Which is to say it honors precedent. It doesn’t make every person in the world affected by a given policy sue to get the benefit of that precedent. With a normal administration, in other words, the injunction—whether universal or not—has effect beyond the parties because the administration acknowledges the court’s interpretation as an authoritative interpretation of law. 

In this case, by contrast, the government conspicuously refuses to do that in a number of different ways. Beyond going to the Supreme Court and effectively asking for permission to enforce the obviously unlawful policy against non-parties, the government also refused at oral arguments to commit itself to considering a court of appeals ruling binding law within the relevant circuit. This was actually a shocking moment, and Justice Sotomayor refers to it specifically in her dissent. 

In other words, imagine that suits proliferate all over the country and every single court of appeals rules against the Trump administration on the lawfulness of the birthright citizenship order. The administration accepts only that all of these rulings would be binding with respect to the plaintiffs in those cases, not to the many more people who might be identically situated to them. 

But it actually gets worse. 

The solicitor general said at oral arguments that the government would ask for certiorari and take an adverse ruling from a court of appeals to the Supreme Court. And he acknowledged that a ruling from the Supreme Court rejecting the policy would effectively function as a universal injunctions affecting non-parties as well as parties. 

The court majority takes him at his word on both points. But it doesn’t explain why. And nothing actually requires that the administration ultimately seek cert in response to an adverse ruling. The dissenters openly fear that the administration might never ask the Supreme Court for the authoritative ruling that it says would settle the matter nationwide. “There is a serious question . . . whether this Court will ever get the chance to rule on the constitutionality of a policy  like the Citizenship Order,” writes Justice Sotomayor. The dissenters also clearly harbor a bit of suspicion that even an authoritative Supreme Court ruling wouldn’t actually bind the executive with respect to non-parties. Justice Sotomayor makes this point explicitly: “To the extent the Government cannot commit to compliance with the Court of Appeals decisions in those Circuits, it offers no principled reason why it would treat the opinions of this Court any differently nationwide.”

Exactly how justified the liberals are in their fear of this kind of gamesmanship depends on a few questions to which we don’t yet have answers. One is just how tightly the majority really has choked off the universal injunction. The majority opinion leaves space for the universal injunction where it is necessary to provide “complete relief” to the actual plaintiffs themselves, and it is possible that plaintiffs—particularly state plaintiffs—will be able to argue that nothing less than a universal injunction will be able to shield them from illegal actions under the order. 

Perhaps the more important question is how plausible the class action is as a substitute for the universal injunction. Justice Samuel Alito raises this question in his brief concurrence, noting that the exception here could end up swallowing the rule. “Lax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision,” he warns. 

But what clearly animates the sky-is-falling rhetoric is fear that the majority is committed to whistling past the administration’s gamesmanship is thereby allowing unlawful activity by a group of people whose threadbare commitment to observing the law simply cannot be trusted. I have some degree of philosophical sympathy for the majority’s position here on the issue as presented, but I cannot deny the legitimacy of this concern. And it behooves the majority to stop pretending that issue is not also squarely before them.

The Situation continues tomorrow.