Forget Roe v. Wade- ask Kavanaugh about nationwide injunctions

Aliiolani_Hale_2011_by_D_Ramey_Logan.jpg

I hope a Senator indulges me and presses Brett Kavanaugh, Trump’s nominee to replace Anthony Kennedy on the Supreme Court, on this question: “If a District Court judge issues a nationwide injunction, is that a valid constitutional use of his authority or a gross judicial overreach?”

Yes: this question is more important than all the empty banter about Roe v. Wade or legal precedent (a friendly reminder that precedents are fine—unless they stink. I would ask anyone who lauds “precedent” if he supports adhering to Plessy v. Ferguson—the case which comfortably decided 7-1 that states can mandate private companies, such as railroads, to accommodate white people and black people separately. Or ask him if he likes Kelo v. City of New London, a major decision on eminent domain which I wrote about here.)

The nationwide injunction, a relatively new power grab by District Court judges, allows lone members of the bench to substitute their political views for those of the President and Congress. It’s time to beat this practice back before it gets more common, and I would support Judge Kavanaugh’s nomination if he were willing to help the cause.

The two most frustrating recent nationwide injunctions came out of Hawaii, blocking President Trump’s travel ban, and out of Texas, blocking elements of the Affordable Care Act. Both were largely dumped by higher courts, but such activism on the lowest federal bench is unsettling because it gums up the work of government.

Aside from the reality that any one of over 600 appointed-for-life federal judges can now wake up one morning, look at a law or executive order, and just say “Nah, I don’t think so”, the nationwide injunction creates other problems nobody needs:

  • It encourages forum-shopping. If you want to smack down something done by one party’s President or Congress, file for your injunction in a district where judges lean the other way.
  • If a judge uses proper restraint and says no to your injunction request, that doesn’t preclude you from moving on to the next district and asking again, continuing until you get the result you’re after.
  • There’s a real possibility (soon!) of, well, “Duelling Nationwide Injunctions”. For example, plaintiffs who want President Obama’s DACA policies to continue have gotten nationwide injunctions in federal courts in California and New York (of course!) to stop President Trump from dismantling them. Seven states have filed in the Southern District of Texas (great place to start!) for an order to make Trump take DACA apart. That’s pending. Conflicting orders would force the President to be in Contempt of Court… somewhere.

Since we can’t count on every single federal judge to behave himself, they need direction from above. The good news is that now seems the perfect time to impose those restrictions. While Trump v. Hawaii (the travel ban case) did not address nationwide injunctions structurally, Justice Thomas wrote long and hard in a concurring opinion that what he called “universal injunctions” were a problem: instead of providing relief to particular plaintiffs, or even a class of plaintiffs, they were geared for all possible plaintiffs anywhere, anytime.

Thomas extensively cited Prof. Samuel Bray, the leading authority on nationwide injunctions. [1][2] In his majority opinion, Chief Justice Roberts also talked about how remedies should be plaintiff-centered. The bad news/good news is that Justice Sotomayor (joined by Justice Ginsburg) endorsed the nationwide injunction. That’s bad for reasons discussed above, but at least those four justices want to talk about it.

Enter Judge Kavanaugh. Since the Robert Bork hearings, it’s been tough to pin judges down on their opinions as they sit before the Senate, but I really hope someone will try to draw Judge Kavanaugh out on this matter. If the question isn’t directed towards any one case but posed generally, we might even get something resembling an answer. A Justice who takes a dim view of nationwide injunctions would be a worthy addition to the Supreme Court.

 

Further reading of works by Samuel Bray. The first one is The Full Monty; the second one is the highlight package:

  1. https://harvardlawreview.org/wp-content/uploads/2017/12/417-482_Online.pdf
  2. https://www.lawfareblog.com/case-against-national-injunctions-no-matter-who-president