Bad Facts Make Bad Law, and that Includes Bad Vehicles
When seeking discretionary review in the highest courts of a state or the nation, one question petitioners must address is whether the case provides a good vehicle to address the question presented. If the facts as decided below remain in dispute or the question is tangential, the case will rarely provide an enticing instrument for a grant of certiorari. Even with the care that often accompanies decisions on whether to take up a petition or application, mistakes are made. Each term at the U.S. Supreme Court sees one or more cases dismissed as improvidently granted (called a “DIG”), often because it did not turn out to be the vehicle the justices believed it to be.
Dissenters in the cases that arise at the U.S. Supreme Court, particularly in “shadow” or emergency docket cases often decry the acceptance of a case that does not check all the boxes as a good vehicle and would not be a ready candidate for certiorari. The issue in the case may arise prematurely with an insufficiently developed factual grounding or the justices may want more “percolation” in the lower courts; i.e., the benefit of more opinions from different courts before arriving at a single national answer.
Two weeks ago, I wrote about the freshly decided shadow docket decision in Trump v. CASA, Inc., suggesting that the decision, which spelled the death knell of most universal or nationwide injunctions, also raised serious questions about the Supreme Court’s own authority to enjoin unconstitutional or illegal actions beyond the parties. As I wrote the post, the issue of whether CASA was an appropriate vehicle for the Court’s decision kept nagging at me. After all, the merits of the executive order on birthright citizenship were controlled by binding precedent.
Even if those precedents were in doubt, which is not the case, all lower courts must follow the holdings and even the dicta in those cases. Thus, any district or circuit court decision on the merits really speaks in the voice of the Supreme Court because the lower court is serving as a conduit for the Supreme Court’s own jurisprudence through the mechanism of stare decisis. Thus, as Justice Kavanaugh’s concurrence in CASA says, unlike an untested law or executive order, the Supreme Court remains the “ultimate decisionmaker as to the interim legal status” of the challenged government decree. In other words, this universal injunction did not exemplify the problem that motivated review in this case. As Justice Kavanaugh expressed it, the interim period before merits resolution highlights two “critical questions”:
Should there be a nationally uniform answer on the question of whether a major new federal statute or executive action can be legally enforced in the often yearslong interim period until this Court reaches a final decision on the merits? If so, who decides what the nationally uniform interim answer is?
Where, as here, binding precedent exists, a nationally uniform answer exists, because the Court itself has declared as much. This case, then, was an extremely poor vehicle for answering these “critical questions.”
In fact, nearly all the criticisms heaped on universal injunctions dissolve when this background is considered: no single federal judge is making law for the entire nation or engaged in judicial overreach (the Supreme Court made the decision); no accusation of forum shopping applies (the judge is applying a mandatory precedent); no rush to judgment based on limited filings occurs (the relevant precedent is more than a century old); no distinctions based on the injury asserted by the plaintiffs in court need separate consideration (the Supreme Court announced the general rule); and no undue burden is placed on the federal government (it is acting against Supreme Court precedent, which only that court can change).
The one criticism that survives was the basis for the Court’s decision: the Judiciary Act of 1789 did not grant federal courts equitable authority to deploy universal injunctions. That conclusion necessarily means that the Supreme Court also lacks that authority. Article III 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.” It does not differentiate on the power granted. The Court based its conclusion that universal injunctions are not inherently within the judicial power because the High Court of Chancery in England lacked any analogous power, using that court’s limitations to define the equity jurisdiction of the federal courts.
One heavy thumb on the scale to provide interim relief, Justice Barrett’s majority opinion states, is that a federal court entering a universal injunction against the Government intrudes on a coordinate branch and “prevents the Government from enforcing its policies.” That may be true where a district court is reviewing a novel federal action and assessing its constitutionality for the first time. It is not true where the federal government is proceeding down a path that the Court has already walled off. Justice Sotomayor’s dissent plays off that theme. She calls it “gamesmanship” for the federal government to use this case for a partial, rather than a complete stay, of the district court’s award of injunctive relief. Doing so, she observes avoids the merits of the controversy. For that reason, she criticizes the majority for using the case as an “appropriate occasion to resolve the question of universal injunctions and end the centuries-old practice once and for all.”
Justices, and perhaps a favored presidential administration teeing up a question the majority cannot wait to answer, have the luxury of seeking to answer questions in vehicles that may not be appropriate under any objective standard. Most advocates will not receive similar indulgence. Instead, counsel must consider and explain why their case provides an opportunity to answer a question of great legal importance.