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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: 1) by fustakrakich on Saturday February 01 2020, @05:49PM (10 children)
Nationwide injunctions are needed to challenge and countermand unjust executive orders. The courts prevent the executive from exceeding its authority. In theory that is a good thing. Ultimately congress is supposed to sort it out. All that's needed is for the voters to elect a competent congress.
La politica e i criminali sono la stessa cosa..
(Score: 1, Offtopic) by Runaway1956 on Sunday February 02 2020, @02:25AM (9 children)
That is not untrue. But, we have a problem problem with special interests shopping the jurisdictions to find a judge sympathetic to their cause. That problem is compounded when some judge is willing to exceed his authority. At times, we effectively have an Army lieutenant telling the Marine Commandant what he may or may not do. Or, fifth echelon beauracrats telling front line troops how to do their jobs. Or, in civilian terms, interns fresh out of college telling plant managers how to run their factories.
If you need/want a nationwide injunction, then you really need to be headed directly to the Supreme Court. No judge junior to the SC justices has the authority to issue injunctions that will bind the entire government of the United States.
Hail to the Nibbler in Chief.
(Score: 2) by exaeta on Sunday February 02 2020, @02:54AM
The Government is a Bird
(Score: 1) by fustakrakich on Sunday February 02 2020, @03:35AM
The same special interests corrupt the prez. We need the backstop, imperfect as it is. For now it helps protect the voters from themselves when they elect swamp alligators.
La politica e i criminali sono la stessa cosa..
(Score: 1, Troll) by exaeta on Sunday February 02 2020, @05:38PM (6 children)
Also, the problem with the theory that judges should not issue injunctions... The injunction is deeply rooted in our legal system. Because laws get passed by congress with no review, nobody knows if a law is enforcable until the judicial branch passes upon it. There is a concept called res judicata. Basically, after a court rules on the issue and all appeals are exausted, a party to the lawsuit generally cannot re-litigate the issue if it was decided on the merits (as opposed to decided on jurisdictional grounds). res judicata applies to courts other than the one that issued the ruling too, as long as the party is the same. So when the government loses a case in federal court, other courts aren't free to revisit the issue. res judicata is stronger than precedent, which can be overturned or exceptions made, and different courts can have different precedents, but res judicata applies to the parties. It's deeply embedded in the concept of "finality", that the case must eventually come to a close. There are a few exceptions (foreign court decisions, as one example) but in general you cannot relitigate the merits.
When the government loses a case, it lost. It cannot relitigate that case any more than you or I. It cannot go to a second court and get a second opinion. If the government loses on appeal, that judgement binds it in every court of the same state. This means a federal decision becomes binding in all federal courts. So then, if the court finally decides a practice is illegal, that decision applies nationwide at the conclusion.
A different question, I think, are preliminary injunctions. Can a court issue a nationwide injunction prior to res judicata? I would say no, but there may be circumstances that justify it. A federal court speaks for the United States, not the state they reside in. So nationwide injunctions by federal courts do have some logical merit. But, the appeals process is a safeguard that kicks in before a judgement becomes final, so that would serve to protect the government from abuse by a single judge. So long as the injunction doesn't become nationwide before the government loses its appeals, I don't see opportunity for abuse.
We need to stop trying to neuter the Court System. The Courts are our last defense against corruption, and they enforce the will of the people in terms of our written laws. Our written laws are a greater manifestation of the will of the nation than who we elected in the last cycle. We the people believe in a nation ruled by law, not by men, and the courts need to be empowered to preserve that system.
The Government is a Bird
(Score: 0, Troll) by aristarchus on Sunday February 02 2020, @06:18PM
And believe me, exaeta knows all about exhausting appeals, especially about getting them summarily dismissed. Nice he has picked up some Latin legalese, though.
(Score: 2) by Runaway1956 on Sunday February 02 2020, @08:37PM (4 children)
Yes, injunctions are an important part of litigation. However, as Gorsuch points out, the injunction should apply to the litigants in that particular court case. That is, if I get an injunction against the police to stop parking at the end of my driveway to operate their radar guns, that will ONLY apply to my local police, on my property. It won't apply to every driveway in every county within the state, and it certainly won't apply to all police forces across the nation.
So - an immigration issue arises. There is an injunction to prevent the US from enforcing a law that the complainant doesn't like. That injunction applies to THAT COMPLAINANT ONLY, not to 3,000 other individuals who make the same or similar claims against the government, in 1000 other jurisdictions.
That is key to Gorsuch's statements. If 3,000 individuals are to be protected (or not) by an injunction, it takes 3,000 separate injunctions from each of those aforementioned 1,000 jurisdictions.
The problem is, with 1,000 different judges viewing and reviewing the circumstances in each of those 3,000 cases, you're going to get (at a minimum) 100 differing opinions on the subject. THAT is what the appeals process is for. More senior judges, in more senior jurisdictions weigh in on some, or all, of the lower court's decisions, until finally, the Supreme Court settles the issue, one way or another.
One judge has zero authority to shut the government down. That one judge may only defy the government on individual cases, one at a time.
Hail to the Nibbler in Chief.
(Score: 2) by exaeta on Sunday February 02 2020, @10:54PM (3 children)
The Government is a Bird
(Score: -1, Troll) by Anonymous Coward on Monday February 03 2020, @12:22AM
Now you're getting it, please remain vigilant for such fascist policies. We have so many we already need to work out of our system from the patriot pretense.
(Score: 2) by Runaway1956 on Monday February 03 2020, @04:51AM (1 child)
Yes, it does. That is what it is there for. That is the judiciary's job.
And, again, judges around the nation can and often do arrive at different conclusions, with similar evidence put before them. Those opposing decisions need to be reviewed by superior courts, and ultimately by the Supreme Court. Three junior judges in Podunk do not equal the 9 justices at the Supreme Court.
Hail to the Nibbler in Chief.
(Score: 2) by exaeta on Monday February 03 2020, @03:50PM
The point is that if the court decides that stopping Iranians who are Americans citizens and detaining them without access to a lawyer is illegal, not every Iranian American should be held without bail and without a lawyer with the sole recourse of "sue afterwards".
A big problem with the "sue afterwards" mentality is that the government is usually immune to retrospective relief (monetary awards). You can only get prospective relief (injunctions). So if you can't enjoin the government in general, and they are immune to being sued after the fact, the government is entirely unaccountable.
If we got rid of the 11th Amendment and/or Qualified Immunity and allowed people to get money awards against the government when it broke the law, then individual cases would make more sense. But as it stands right now, injunctions against the whole government are the only real tool the judiciary has to restrain the government when it establishes a pattern of breaking the law.
Nationwide injunctions, after appeals are over, make tons of sense. The Supreme Court does not need feedback from multiple courts before taking up an issue, that is dereliction of judicial duty. If the decision was wrong, the Supreme Court should take up the case right then and there, not leave multiple, inconsistent decisions on the books before deciding to settle it but only for future cases, leaving the original inconsistencies alone...
The Government is a Bird