Does the bell toll for universal injunctions?

Yesterday the Court stayed much of the district court injunction Labrador vs. Poe, narrowing the injunction so that it protected only the plaintiffs from enforcement of an Idaho statute restricting surgeries and other types of medical interventions for minors related to gender identity. Accompanying the Court’s stay were three opinions on universal injunctions. Labrador vs. Poe constitutes an important development and begins to clarify the direction of the Court.

Please note that in this post I will refer to “universal injunctions,” which are injunctions that prohibit government enforcement of a law or regulation on anyone, not just parties and those represented by parties. In other words, the category “universal injunctions” includes national injunctions as well as their state equivalents (i.e., includes injunctions at the national and state levels), but excludes the distinct issue of vacatur as a remedy under the Administrative Procedure Act. Using the term “universal injunctions” is helpful because that is what is directly at issue among the judges Labrador vs. Poe: This is an injunction prohibiting the enforcement of a state law against anyone, and judges discuss the power to do so as a matter of equitable principles, leaving aside the question of whether those principles are altered by the APA.

Here’s where the judges fell:

• Three justices (Gorsuch, joined by Thomas and Alito) agreed with the stay that narrowed the injunction to protect the plaintiff, and their opinion offered a clear rejection of universal injunctions.
• Two justices (Kavanaugh, joined by Barrett) agreed with the stay and spoke mostly about how the Court should think about staying lower court injunctions. This opinion did not fully answer the question of universal injunctions, but expressed skepticism (“As I see it…”; “In short, a limiting rule…”; and especially note four).
• The Chief Justice did not indicate how he voted, so if he agreed with the suspension the vote was 6-3, otherwise 5-4. It is more likely, given the Court’s practices for unidentified votes, that he agreed to the suspension, but both are possible.
• One justice (Kagan) dissented from the suspension without expressing opinion. This does not indicate a position on the universal injunction issue, as it is consistent with a number of different possibilities, including (1) a view that universal injunctions are not permissible but Idaho has failed, for substantive or procedural reasons , to make a compelling case for a universal injunction to remain; or (2) a view that universal injunctions are permissible, and on these facts there was no reason to think that granting a universal injunction was an abuse of discretion.
• Two justices (Jackson, joined by Sotomayor) dissented from the suspension. They highlighted the debate over the history of universal injunctions and that the issues raised by these injunctions “are controversial and difficult.” Their disagreement with the majority concerned how rigorous the standard for staying lower court injunctions should be, how deferential the Court should be, and whether the injunction in this case was actually a universal injunction (as opposed to one that it wasn’t). wider than necessary to protect the claimants).

Brief observations:

1. This is the first time we have a case in which a majority of the justices (seven) shared opinions that say something, however exploratory, about universal injunctions.
2. There is a striking asymmetry in the positions of these seven: three against universal injunctions, two skeptical of them, and two who find the issue undecided and difficult. No one offered a first-principles defense of what has only become the status quo in the lower courts since the latter part of President Obama’s second term.
3. In terms of arguments, the opinions were cautious and I was particularly struck by the absence of two straw men. First, it is sometimes said that without universal injunctions there should be individual actions for each affected person, but this ignores the role of precedent, and both the Gorsuch and Kavanaugh cases recognize the role of precedent in how a judicial decision reaches the non-parties. . Second, it is sometimes said that the position against universal injunctions requires thinking that an injunction cannot have any incidental benefit to non-parties. It is not so. An injunction requiring A to remove a nuisance affecting neighbor B might also have good benefits for neighbor C. And Justice Jackson made exactly this point (note 3).
4. In terms of revealed preferences, what’s new in Labrador vs. Poe it is multiple. Justice Alito joined Justice Gorsuch and Justice Thomas in opposing universal injunctions, I think for the first time. And I believe it was Justice Jackson’s first opinion on universal injunctions since he joined the Supreme Court: he offers a measured assessment of the debate and not only criticizes the competing justices (but AND a dissent), but also calls for restraint among lower federal judges issuing universal injunctions (the paragraph with “I see some common ground”). Judge Kavanaugh’s opinion reflects his continued skepticism about injunctions against state laws that go beyond plaintiff protection, as well as his inclination to distinguish the injunction issue from the APA issue – both themes that previously appeared in his statement regarding the refusal of the request for suspension In Griffin v. HM Florida-ORL, LLC.
5. It makes sense to think about the injunction issue first and separately, as the APA issue adds additional layers and complexity to the central issue of equitable power in the absence of a statute. This is exactly what the Court is doing.
6. Interestingly, the question was about an injunction against a state law. There were important opinions by Justice Stras (in dissent) and Chief Justice Sutton that extended criticisms of national injunctions to their state counterparts. The opinions of the judges in Labrador vs. Poe they are a measure of vindication.
7. There are many other important aspects to all of these opinions, including thoughtful contributions on when a Supreme Court stay is appropriate and on the impossibility of completely avoiding the merits, the docket, and forum-shopping (as Justice Gorsuch correctly says : “In the practice of universal injunction,… [j]just look for a willing judge and, at the beginning of the case, you can obtain a decree prohibiting the enforcement of a duly enacted law against anyone.”).

I conclude by quoting the incisive final paragraph of Judge Gorsuch’s concurrence:

Lower courts would do well to pay attention. Lifting the universal injunction may not be the answer to all that ails us. But it will lead to federal courts becoming a little more faithful to the historical limits of their office; promote judicial decisions that are more carefully reasoned and in tune with the facts, parties and claims in question; allow the gradual acquisition of weighted precedents at the circuit level; and reduce the pressure on governments to seek interlocutory relief from this Court. The return to a more piecemeal and deliberative judicial process may seem inefficient to some. It may promise less power for the judge and less drama and excitement for the parties and the public. But if all this makes today’s decision wrong, it does so in the best possible way, because “good judicial decisions are usually tempered by older virtues.” DHS, 589 USA, at ___ (slip op., at 4).