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Justice Gorsuch Compared Nationwide Injunctions to the One Ring From ‘Lord of the Rings’
Justice Neil Gorsuch invoked J.R.R. Tolkien’s tri-part epic “The Lord of the Rings” in a Monday concurrence that suggested the Supreme Court may need to curtail the use of nationwide injunctions.
Gorsuch likened nationwide injunctions to the One Ring, an artifact of malevolent power whose destruction is the driving action of Tolkien’s saga. The justice alluded to the ring as he reviewed the history of litigation regarding the Trump administration’s public charge rule, which will take effect after the high court lifted two injunctions entered against it Monday afternoon.
A lengthy inscription on the band proclaims that the One Ring shall “rule them all.” Gorsuch found that domineering promise an apt descriptor for nationwide injunctions, which remain in force regardless of the outcome of other lawsuits on a given subject.
“Despite the fluid state of things — some interim wins for the government over here, some preliminary relief for plaintiffs over there — we now have an injunction to rule them all: the one before us, in which a single judge in New York enjoined the government from applying the new definition to anyone, without regard to geography or participation in this or any other lawsuit,” Gorsuch wrote.
Nationwide injunctions exceed judicial power, Gorsuch says
Gorsuch argued that nationwide injunctions raise fundamental questions about judicial power. The Constitution does not give federal judges freestanding authority to strike down laws or award damages. Instead, the courts are empowered to resolve specific “cases and controversies” that unfold in the real world between adversarial parties.
Since the judicial power extends to those particular disputes, it follows that courts only have power to bind the parties before them, Gorsuch said. But when a judge-ordered remedy reaches beyond a particular case, Gorsuch suggested courts are transformed from venues for dispute resolution into something else entirely.
“When a district court orders the government not to enforce a rule against the plaintiffs in the case before it, the court redresses the injury that gives rise to its jurisdiction in the first place,” Gorsuch wrote. “But when a court goes further than that, ordering the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies.”
What’s more, Gorsuch said nationwide injunctions are contrary to our legal tradition. When new legal questions emerge, many different lower courts reach their own conclusions — sometimes divergent — over a long period of time.
In turn, higher courts review those results, then announce controlling principles for future cases. The hope is that higher courts can issue quality, well-informed decisions with the benefit of multiple inputs from the lower courts.
Nationwide injunctions interrupt that process, Gorsuch said, turning ordinary disputes into emergencies.
“By their nature, universal injunctions tend to force judges into making rushed, high-stakes, low-information decisions,” Gorsuch wrote.
“The rise of nationwide injunctions may just be a sign of our impatient times,” he added. “But good judicial decisions are usually tempered by older virtues.”
Justice Clarence Thomas, who joined Gorsuch’s Monday opinion, sounded similar notes in a concurrence to the 2018 travel ban decision. Like the public charge rule, the administration’s travel sanctions were subject to multiple nationwide injunctions.
“These injunctions did not emerge until a century and a half after the founding,” Thomas wrote. “And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.”
Trump administration searches for solution
Nationwide injunctions have beset the Trump administration since the president took office. By the Justice Department’s telling, the federal courts have entered about 40 injunctions against the executive branch since 2017. In contrast, only 27 nationwide injunctions were issued in the entire 20th century.
Vice President Mike Pence said that the administration would look for an appropriate case to challenge nationwide injunctions in the Supreme Court during a May 2019 speech to a Federalist Society conference in Washington, D.C.
The question cannot reach the high court on its own. Rather, the justices can only address the question if it is part of an ongoing dispute.
That could leave the government in something of a bind, however, as it raises the possibility the administration would have to lose a case on the merits in order for the justices to reach the injunction question.
That’s because the high court has no reason to decide on an injunction when the government wins and successfully defends its policy. If the challengers lose, they aren’t entitled to anything. Only after the challengers prevail is the question of a remedy relevant.
Liberals and conservatives alike have obtained nationwide injunctions to attain their litigation goals.
Republican state attorneys general used such orders to good effect in the waning days of the Obama administration. Those injunctions, obtained from right-leaning trial courts in places like Texas, blocked an Obama-era policy on transgender bathrooms and a companion initiative to the Deferred Action for Childhood Arrivals (DACA) program.
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Kevin Daley is a reporter for the Daily Caller News Foundation.
Background Photo “The One Ring” by Rodrigo Olivera. CC BY 2.0.
(Score: 0, Disagree) by Anonymous Coward on Sunday February 02 2020, @04:46PM
We'll regret it if we don't rein in the courts, but the Senate has also made this a complete disaster. Because the Senate has tried to engineer a Republican takeover of the courts, federal courts have been stacked with right wing judges who can then abuse their power, such as what Gorsuch is describing. I generally believe that the Supreme Court judges are thoughtful in their rulings, but that's not always the case with lower courts.
Judges have lifetime appointments to limit the ability of the judicial branch to be swayed by political whims or abuses. That's also why the Senate was originally elected by state legislatures, and why Senators serve longer terms. The Senate was supposed to be insulated from political whims, in contrast to the House.
Republicans have done everything they can to block Democrat-appointed judges and to stack the courts with right wing judges. When Democrats had the majority, Senate Republicans filibustered a large number of judges appointed by Obama at an unprecedented rate. Courts were left understaffed. Democrats ended filibusters for presidential nominees except Supreme Court judges [politico.com] because of Republican obstructionism.
Once Republicans got control of the Senate, they once again refused to confirm Obama's judicial nominees. Evidence indicates that Senate Republicans blocked judicial nominees in Obama's final two years at a rate unprecedented in recent history [brookings.edu], leaving Trump an unprecedented amount of vacancies to fill. McConnell refused to even hold hearings about Obama's Supreme Court nominee. Then the Senate eliminated the filibuster for Supreme Court nominees [nbcnews.com] to get Gorsuch confirmed. Now, McConnell says the Senate would fill a Supreme Court vacancy in an election year with a Trump nominee [washingtonpost.com], a complete reversal from his refusal to even hold hearings on Merrick Garland.
It was a dangerous precedent for Democrats to eliminate the filibuster back in 2013. However, Republicans persistently blocked efforts by Obama and Democrats to fill judicial vacancies at all levels. Once Trump got control of the White House, the vacancies were filled with right wing judges. Senate Republicans went a step further than Democrats to remove the filibuster for Supreme Court nominees. I sure hope that Democrats don't eventually expand the Supreme Court. It's time to end the Republican abuses instead of playing the same game.
Because the courts are no longer as insulated from legislative politics, it's time to scale back the power of individual judges. While this might initially work against Democrats looking to overturn Trump's policies and executive orders, it's a good thing in the long term, particularly given how much the courts have been politicized.