Supreme Court Says No to Universal Injunctions, But Its Reasoning Impairs Its Own Authority

Friday, in Trump v. CASA, Inc., the Supreme Court held that federal courts lack authority to issue “universal injunctions,” orders that prohibit the government from implementing a policy nationwide rather than solely with respect to the plaintiffs before the court. Given the views expressed by the justices in the past, the result provided no surprise. Still, the scope of the decision was uncertain. The one guaranteed result of the decision is that there will be more litigation, not less, challenging presidential actions.

The Court, in an opinion written by Justice Barrett, adopted a rigid doctrinaire rationale supposedly based on historic understandings of the equitable powers exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act. It concluded that universal injunctions were not among those powers because the authority of the chancery court was limited to the parties before it. On that point, though, the dissenters disagreed and called the majority’s  conclusion an “ahistorical result,” pointing out that “bills of peace, for centuries, allowed English courts to adjudicate the rights of parties not before it, and to award remedies intended to benefit entire affected communities.”

The majority nonetheless concluded that Congress did not grant the courts authority to issue orders that do more than grant relief beyond what is necessary to vindicate the rights of the parties in any particular case, while suggesting that class actions might be available to provide broader relief. That may not prove true. Justice Alito, in a concurrence joined by Justice Thomas, warned against relaxing the tough requirements for class certifications to undo the effect of the Court’s decision, and Justice Sotomayor in dissent for herself and Justices Kagan and Jackson noted the many obstacles class actions face. Parens patriae actions by state attorney generals on behalf of all state residents were also questioned in some concurrences.

I do not seek to resolve the historical debate here, or whether class actions might provide necessary relief to unconstitutional executive action. Instead, I want to suggest a problem that could crop up given the opinion’s central reasoning: courts are limited to remedying issues for the parties before it and cannot go further than that.

Although CASA was decided in the context of district-court injunctions, during oral argument, Solicitor General Sauer was asked about the reach of a federal circuit court affirming injunctive relief. He suggested that the same limitation, covering only the parties in the case, would apply to that Court. In that case, the questioning continued, what about a decision by the Supreme Court? Sauer’s response was that the administration respects the Supreme Court, suggesting it would comply nationwide with the Court’s decision. At the same time, the response seemed to suggest that a president who does not respect the Court or, perhaps a specific decision, could insist that it decided nothing beyond the challenger who brought the case.

In fact, the Supreme Court exercises no greater power in equity than any other federal court. Section 1 of Article III of the Constitution vests the “judicial Power of the United States … in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Marbury v. Madison held that Congress could not enlarge the original jurisdiction vested by the Constitution in the Supreme Court to include writs of mandamus. Under CASA’s reasoning, then, the Supreme Court has no authority to issue nationwide or universal injunctions.

That result is consistent with tradition, even if problematic in other respects. A Supreme Court decision opinion does not protect parties who are not before the Court. If the government engages in the same unconstitutional behavior after a Supreme Court decision, no court could issue a contempt citation because no ruling existed prohibiting that misconduct when directed at a nonparty. Instead, stare decisis explains why the result in another case should be the same, at least until the early precedent is overturned. And the current executive order on birthright citizenship challenges existing precedent, the 1898 decision in United States v. Wong Kim Ark.

A good example of how Supreme Court precedent works and resistance to it occurred in Cooper v. Aaron, which held that the Little Rock School District’s refusal to give up segregated schools ignored the decision in Brown v. Board of Education. The Court, in an unusual decision signed as co-authors by all nine justices, declared that the Arkansas governor and legislature were bound by federal court orders resting on Brown that the Equal Protection Clause prohibited government from using its powers to “upset and nullify our holding in Brown” until it could be “further challenged and tested in the courts” on the pretextual excuse that implementation was difficult and took time. No judgment in Brown ordered any non-party’s compliance, but it seemed unthinkable that the ruling would apply differently anywhere else.

Now imagine a president who decides that CASA means what it says when it limits judicial equitable authority to the parties before it and that the limitation extends to the Supreme Court. Let us assume that the Supreme Court accepted certiorari to determine whether the president could abrogate birthright citizenship in a specific case and held it unconstitutional. Nonetheless, assume that the governor and legislature of a state, as in Cooper, chooses to implement the president’s now-unconstitutional policy despite the Court’s ruling and the president backs that play.

Presumably, a resident of the state would challenge the action by asserting newly announced binding precedent. Yet, there is no guarantee that such a case would be quickly and favorably decided for that plaintiff or a certified class. Inevitably, there would be a period of time, perhaps even years, in which residents of that State would suffer under a plainly unconstitutional regime. And if the same thing happened in a number of states, not just one, so that citizenship would vary from state to state, there would be an unraveling of the rule of law much more profound than the existence of universal injunctions. As Justice Jackson’s dissent in CASA expressed, the decision would amount to “complicity in the creation of a culture of disdain for [] courts, their rulings, and the law (as they interpret it) [and] surely hasten the downfall of our governing institutions, enabling our collective demise.” In doing expressing this concern, she invoked another Justice Jackson (Robert). But her words reminded me of a different sentiment the other Justice Jackson expressed, even if used in a different context: doctrinaire logic without a little practical wisdom will convert the Constitution into a suicide pact.