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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, Offtopic) by Anonymous Coward on Sunday February 02 2020, @01:16AM (20 children)
"Fascism is a form of far-right, authoritarian ultranationalism characterized by dictatorial power, forcible suppression of opposition, and strong regimentation of society and of the economy."
He is upset that stare courts are making rulings based on existing law and issuing an injunction which allows other courts the use of their precedence. This is literally the opposite of fascism, giving states the power to overrule federal policy.
Similar to sanctuary cities (which piss off and cheer on conservatives at the same time, but liberals are just "meh do whatcha gotta do") this is what you conservatives are always crying about with states rights. Don't tell me your outrage is reserved for violations of the 2nd, and 1st when it's you that is being, ehm, persecuted? So far I haven't seen Republicans actually oppressed other than socially.
These injunctions are simply limiting executive power, something you conservatives have always been fans of. What is happening is that the real authoritarians are mascarading as your leaders, your friends, while setting the precedent for unlimited executive power. This is precisely what you screamed about Obama doing, and you weren't wrong! He abused executive power in little steps.
Remember what the libertarians keep saying, both parties are the same. That is true for those beholden to their party's owners. If you don't like the idea of a liberal dictator, then you'd better stand up to the conservative ones!
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @01:21AM
Off the bat "far right" is not a proper characterization, I just didn't think to edit the defintion.
There can be "liberal" dictators even though it goes against the word definitions. Far left dictatorships are super possible, take the communist revolution in China. The only problem was the Chinese were just coming out of millenia of Emperor rule and so Mao became the next emperor. They've been sorting out their culture ever since, but when Mao and the government system switched to dictstorship is when it truly went tits up.
States rights sre important as the microcosm of central vs. local authority. Do not give the position of POTUS the power of dictstorship. It will filter down the line branches of government as all power structures do and we'll literally be in 1984. I'm convinced we've fractured time at this point :P
(Score: 2) by Runaway1956 on Sunday February 02 2020, @02:29AM (18 children)
While you wander around out there in left field, mumbling nonsense, let me remind you that "states rights" simply do not apply to some rogue city passing laws contrary to federal and state laws. When a mayor declares that his city will not obey federal law, the governor should send in the militia, and remove that mayor from office.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @08:51AM (4 children)
Especially when said mayor is an idiotic oaf sheeper vowing to not enforce reasonable legislation on lethal weaponry.
(Score: 2) by Runaway1956 on Sunday February 02 2020, @12:08PM (3 children)
WTF is "reasonabole legislation"? I've never heard of it. Is that a new legal test, used by the courts? Is "reasonable" also "constitutional"? I know that the courts are supposed to test for constitionality. Does your reasonable pass constitutional, or not? What's that smell, anyway? Something smells awful in here.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @06:14PM (2 children)
Good question! Is "reasonabole" something like "hyperbole"?
We're coming for you guns, Runaway. There will be an injunction, soon. Wait for it!!
(Score: 2) by Runaway1956 on Sunday February 02 2020, @08:27PM (1 child)
Whatever. Molon labe.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @11:20PM
We have been over this before. The proper spelling in YOUR case is "Moron Labia".
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @07:35PM (11 children)
Ya, arrest those gun nuts sanctuary cities!!
Yer such a dumbass.
(Score: 2) by Runaway1956 on Sunday February 02 2020, @08:25PM (10 children)
Ahhhhhh, BUT - gun rights aren't state's rights. The second amendment is specifically aimed at PEOPLE who own weapons, not states. And, the state is violating, or threatening to violate CONSTITUTIONAL RIGHTS.
Huge ass difference.
It would take a constitutional amendment to change the laws that Dems have in their sights, or even to justify a large number of laws already passed.
There is no constitutional amendment required to enforce federal law over a rogue city. So, the feds can come visit these 2A sanctuaries, look around, nod their heads in approval, and tell the state to go fuck off.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Sunday February 02 2020, @09:17PM (9 children)
Partisan fool supporting a traitorous coup by the GOP. Fascist soon-to-be literal nazi.
(Score: 2) by Runaway1956 on Sunday February 02 2020, @09:30PM (8 children)
If it is traitorous to stand against progressive/liberal/democrat objectives, I'll proudly wear the name. Thank you very much.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Monday February 03 2020, @12:07AM (7 children)
Interesting, so you support treason when it is against your political opponents? How blindly you goose step, and as always with such movements you do it with pride thinking that you're the good guy.
Gee, that joker who hounds you about taking your guns really does break your brain. You shouldn't get so easily worked up, you'll more than likely shoot one of your neighbors who needs to borrow some sugar.
(Score: 2) by Runaway1956 on Monday February 03 2020, @04:45AM (6 children)
"defend the United States and it's constitution against all enemies, foreign and domestic"
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Monday February 03 2020, @07:02AM (5 children)
Yet you don't understand that threatening violence over political differences makes you the traitor? Guess we'll either get a real coup by Trump and the GOP, in which case you'll happily murder protesters, or we'll get a political shift away from corruption and you'll go murderin' dem commie libs. Either way it looks like you just want to hurt people.
(Score: 2) by Runaway1956 on Monday February 03 2020, @07:19AM (4 children)
Maybe you missed the point where the governor of Virginia threatened law-abiding citizens with violence if they didn't bring their guns to him. When the governor threatens violence over political differences, it's time to remove the sumbitch, by whatever means. Wake up and smell the coffee. And, see my latest journal entry.
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Monday February 03 2020, @03:42PM (3 children)
It is hilarious, I pointed out that sanctuary cities are a proper version of local government taking power back and you flipped your shit cuz immigrants. Then I point out your hypocrisy, but it is about guns so then it's all muh freedoms!
There is no hope for the terminally brainwashed.
(Score: 2) by Runaway1956 on Monday February 03 2020, @06:04PM (2 children)
No hypocrisy at all. The 2A sancuaries are defying state laws, and in the process defending federal law, and the constitution.
Those partisan immigration sancuary cities are defying federal law, as well as state law in some cases.
I don't know about brainwashing - maybe you should just try thinking. Careful though - don't strain yourself!
Hail to the Nibbler in Chief.
(Score: 0) by Anonymous Coward on Tuesday February 04 2020, @02:04AM (1 child)
Sooooo terminally brainwashed it is.
(Score: 0) by Anonymous Coward on Tuesday February 04 2020, @02:29AM
and you're not
(Score: 2) by exaeta on Monday February 03 2020, @05:43PM
The Government is a Bird