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Home » Gorsuch does not ♥ nationwide injunctions from district judges

Gorsuch does not ♥ nationwide injunctions from district judges

The New Neo Posted on by

Here’s a good discussion of a recent SCOTUS decision, and in particular some remarks by Justice Gorsuch in a concurring opinion. The Court voted 5-4 to lift a nationwide injunction placed by a district court judge on Trump’s new rule preventing people who are on the public dole (or likely to be) from getting green cards:

District court judges — the lowest judges in the federal system, ruling alone, rather than part of a panel of judges, from the bench — have, as usual, claimed to have the power to issue nationwide or even “universal” or indeed “cosmic” injunctions against enforcement of the rule.

Neil Gorsuch concurred with the judgement setting aside this claimed “universal” injunction, and then — finally! — ripped the Hawaiian judges presuming the authority to dictate the entire nation’s laws from their dinky little bench.

Gorsuch wrote, among other things:

It has become increasingly apparent that this Court must, at some point, confront these important objections to this increasingly widespread practice. As the brief and furious history of the regulation before us illustrates, the routine issuance of universal injunctions is patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.

Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence.

This is not normal. Universal injunctions have little basis in traditional equitable practice. [Citation omitted.] Their use has proliferated only in very recent years.

That is so obvious that one would think it would have been stated long before this. But we’ve been waiting for a long time, while the practice continued apace.

Nor will this resolve it for good; as Gorsuch says, the Court must rule definitively on the issue. This is just the warmup act.

And the decision should have been 9-0. But it wasn’t.

Comments

Gorsuch does not ♥ nationwide injunctions from district judges — 16 Comments

  1. “And the decision should have been 9-0. But it wasn’t.”

    Didn’t Bush v Gore put an end to any illusions about the Supreme Court?

    Mike

  2. Justice Gorsuch has a great book out. One of my favorite quotes:

    Meanwhile, the founders understood the judicial power as a very different kind of power. Not a forward-looking but a backward-looking authority. Not a way for making new rules of general applicability but a means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.

  3. MBunge:

    I can’t remember when I stopped having illusions about the Court, but I believe it was in the 1970s.

    And of course I didn’t expect the decision to be 9-0. But it should have been.

  5. Kate,

    And the make up of the lower courts will be adjusted for a long time to come. And who knows? Maybe universities and law schools will start changing too… We can only hope.

  6. We should all have lost our trust in the Supremes decades ago.
    Earl Warren and William O Douglas … legalized discrimination against Black Americans… there’s a treasure trove of ancient examples of overreach and bias.

    Bush v. Gore? As I recall the NYT, UPI and a consortium of other media names paid for a Florida recount.
    Bush won.
    SCOTUS did OK on that one.

  7. “And the decision should have been 9-0.”

    It’s still open season on Conservatives, see Gen Flynn and any number of anti Trump friv lawsuits, as well as multiple cases like Neo describes above where low level judges hijack justice.

    When has any Dem paid a price?

  8. “And the decision should have been 9-0.”
    But it was not.
    Kindly tell the unrealistic Chief Justice that he is among ideologues, and is touched by constitutionally adverse ideology (“it’s not a penalty, it’s a tax, so it’s OK”) himself.
    Surely a necessary and obvious step in the right direction. Obvious, in that even I have seen this for years of Democratic lawfare.

  9. By the way, if you ever hear or read anyone complaining about Trump becoming President while losing the popular vote, almost every single one of those complainers are perfectly fine with having ONE federal judge overturn a law passed by a majority of legislators or a referendum approved by a majority of voters.

    Don’t let them lie about their concern for “democracy” or “majority rule.”

    Mike

  10. Note that our Chief Justice is also the overseer of the FISA courts.
    And that he has done nothing to hold them accountable for the travesty that they have become.

    I pray that Trump will be able to get at least 2 new justices to the Supreme Court over the next 4 years and 10 months.

  11. Edward:
    Whoa!
    Who knew “our Chief Justice is also the overseer of the FISA courts”?
    Turns out it is even worse: Roberts has appointed all 11 sitting FISA judges. A critical reviewer found he has little apparent interest in surveillance issues.

  12. MBunge on January 29, 2020 at 6:16 pm said:
    By the way, if you ever hear or read anyone complaining about Trump becoming President while losing the popular vote, almost every single one of those complainers are perfectly fine with having ONE federal judge overturn a law passed by a majority of legislators or a referendum approved by a majority of voters.

    Don’t let them lie about their concern for “democracy” or “majority rule.”

    Mike
    * * *
    If the Left didn’t have double standards….

  13. Here’s what the Left really thinks about you…so that the judges have to save us from ourselves.

    http://ace.mu.nu/archives/385503.php

    January 28, 2020
    CNN Nasty: Don Lemon, Rick Wilson, and Ali Wahjat Laugh and Laugh at Trump Voters, Doing “Hick” Voices
    The second-most embarrassing thing here is a “joke” that Rick Wilson pre-wrote for his appearance, that Trump could not find Ukraine on a map if you included the letter “U” and a “picture of a physical crane.”

    Oh, I get it. Like a Rebus puzzle! You know, that thing that only children under 5 are amused by!

    But the most embarrassing thing is that this “joke” absolutely slays Don Lemon.

    We’ve always known he had a child-level intellect. We just didn’t know it was a kindergarten level.

    Oh, and Rick Wilson, who is decrepit, also attacked “boomers.”

    The left permits itself the sort of broad attacks on people for their race, religion, and age that they shriek about when another even hint at it.

  14. https://hotair.com/archives/john-s-2/2020/01/29/vox-say-nationwide-injunctions-turn-bad-news-progressives/

    Millhiser concludes by saying, “if Democrats wait until after they’re back in power, any chance of forming an alliance with Republicans to prevent judicial overreach is likely to evaporate overnight.” In other words, the judicial overreach Dems have been employing for the past three years needs to end before a Democrat is elected. Otherwise, Republicans will use the same tactic against us!

    Wouldn’t that be a terrible shame.

    I suspect this is something a lot of progressives are quietly worried about. The problem with Millhiser’s concern is that it may have arrived a little too soon. They may need to keep this up for a while longer if Trump is reelected. So my guess is they’ll continue to worry about this quietly.

    But you can bet your bottom dollar that next year or in five years, if and only if a Democrat is elected president, we’ll suddenly have a surfeit of think-pieces like this one explaining how nationwide injunctions are an affront to the constitutional order. Until then, the left is going to keep celebrating every bit of judicial overreach they can get.

    Inside the post, Sexton quotes AG Barr, who said pretty much the same thing last May, with no notice from Vox:

    Nationwide injunctions not only allow district courts to wield unprecedented power, they also allow district courts to wield it asymmetrically. When a court denies a nationwide injunction, the decision does not affect other cases. But when a court grants a nationwide injunction, it renders all other litigation on the issue largely irrelevant. Think about what that means for the Government. When Congress passes a statute or the President implements a policy that is challenged in multiple courts, the Government has to run the table—we must win every case. The challengers, however, must find only one district judge—out of an available 600—willing to enter a nationwide injunction. One judge can, in effect, cancel the policy with the stroke of the pen.

    No official in the United States government can exercise that kind of nationwide power, with the sole exception of the President. And the Constitution subjects him to nationwide election, among other constitutional checks, as a prerequisite to wielding that power. Even the Chief Justice of the United States must convince at least four of his colleagues to bind the Federal Government nationwide.

  16. Simple solution. Any judge who issues a nationwide injunction should be handed a writ of mandamus for exceeding his authority.

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