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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, Insightful) by Anonymous Coward on Monday February 03 2020, @12:18AM (1 child)
No, it is an essential check on the executive branch. The chance that some executive order will be unconstitutional is much higher than not. Otherwise there would likely not be a need for the order because existing policies would cover it.
The executive branch has been slowly increasing its power for decades, you don't want to hamstring the judicial. I'm much less worried about judicial rulings than executive orders, at least we have procedures for appealing a court's decision.
Fascism, not even once!
(Score: 1, Insightful) by Anonymous Coward on Monday February 03 2020, @02:53AM
I understand your point and it's a valid one. A big part of the issue is still with Congress. The executive branch has seized power because Congress has been shirking its responsibility as a coequal branch of government. It isn't simply about partisan politics because the obligations of Congress do not change on the basis of which party the President is from. Congress understood this in the past.
FDR got tired of courts striking down his New Deal policies and bickered with the courts in a way that is not all that different from what Trump is doing. With the exception of Woodrow Wilson, Warren Harding, and the first address by Calvin Coolidge, no President had addressed Congress in person since John Adams. Thomas Jefferson ended the practice because he felt it was far too much like a monarch issuing a decree from the throne. Only the one state of the union address by Coolidge was broadcast nationally before he resumed the written form that had been used during virtually all of the 19th century. FDR resumed the practice of giving a speech to a joint session of Congress, which was broadcast nationally. He used radio to shape public opinion in favor of his policies. And he wanted to limit judicial oversight of the New Deal policies.
As a result, FDR proposed expanding the Supreme Court to 15 members. Democrats enjoyed a large majority in the House and a filibuster-proof majority in the Senate. In fact, the majorities enjoyed by the Democrats were the largest for either party since Reconstruction [wikimedia.org]. Democrats could have pushed through FDR's plan, effectively giving them broad control of all three branches of government. This didn't happen and a big part of why is that the Democrats in Congress refused to go along with FDR's plan. Democrats stood up to a very popular president from their own party, refusing to effectively eliminate the judicial oversight.
Congress needs to do its job. Everything is being left to the judicial branch, and Republicans are doing their best to remove that obstacle. Unlike congressional Democrats of the 1930s, the Republicans in Congress are fully complicit in stacking the courts. We wouldn't be relying so heavily on the judicial branch if the legislative branch would do its job.