Supreme Court Justice Neil Gorsuch has issued a sharp critique of the growing practice of federal judges ruling beyond the scope of a particular case, in some court orders known as nationwide injunctions.
As part of the order, Gorsuch provided a concurring opinion urging that the court at some point needs to “confront” the “real problem” of nationwide injunctions. Justice Clarence Thomas, who previously issued his own rebuke of the practice in the 2018 travel ban case, joined in that opinion.
He stated that the real problem is the increasingly common practice of federal court judges ordering injunctions of “nationwide,” “universal,” or “cosmic” scope, adding that such orders raise “serious questions about the scope of courts’ equitable powers under Article III” of the Constitution.
Remedies issued by a court are traditionally meant to redress injuries sustained by a particular plaintiff in the case before the court. When the court goes beyond that and issues orders affecting parties not privy to the case, “it is difficult to see how the court is still acting within its judicial role of resolving cases and controversies,” Gorsuch wrote.
In the case at hand, five district courts issued numerous injunctions that blocked the federal government from implementing its “public charge” rule. The Southern District of New York issued two nationwide injunctions blocking the enforcement of the rule. Similarly, the Northern District of California ordered the administration to not enforce its rule in California, Oregon, Maine, Pennsylvania, and the District of Columbia.
In the Eastern District of Washington, a judge entered an order that stopped the government from enforcing the rule across the country. In the District of Maryland, a judge issued another nationwide injunction against the rule. Meanwhile, a judge in the Northern District of Illinois issued his own injunction but limited its scope to the state.
The injunctions in California and Washington were lifted by the 9th Circuit, while the 4th Circuit lifted the injunction in Maryland. The 2nd Circuit refused to lift the two New York injunctions, prompting the Trump administration to file an emergency request earlier in the year to the Supreme Court to lift the blocks.
Gorsuch wrote that although the government had some interim wins, “we now have an injunction to rule them all,” referring to the injunctions issued by the New York federal judge.
“The Second Circuit declined to stay this particular universal injunction, and so now, after so many trips up and down and around the judicial map, the government brings its well-rehearsed arguments here,” he wrote.
He said such injunctions have caused judges to make “rushed, high-stakes, low-information decisions” because this practice forces parties to “rush from one preliminary injunction hearing” instead of “spending their time methodically developing arguments and evidence in cases limited to the parties at hand.”
“Nor do the costs of nationwide injunctions end there,” wrote Gorsuch, adding that it encourages plaintiffs affected by the adverse government decision to “shop for a friendly forum to secure a win nationwide.”
“If a single successful challenge is enough to stay the challenged rule across the country, the government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal,” he wrote. “A single loss and the policy goes on ice—possibly for good, or just as possibly for some indeterminate period of time until another court jumps in to grant a stay.”
He said this practice can repeat, again and again, until one party gives up or the Supreme Court agrees to review the case.
“What in this gamesmanship and chaos can we be proud of?” he asked.
