77. Justice Gorsuch and "Nationwide" Injunctions

Justice Gorsuch is right to be wary of relief that benefits non-parties. But as his latest opinion underscores, he's inconsistent in when it bothers him and wrong about how big a problem it really is.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

As I previewed in last Thursday’s bonus issue, this week’s “Long Read” takes a longer look at Justice Gorsuch’s opinion concurring in the Court’s decision last week to put back into effect almost all of Idaho’s ban on gender-affirming medical care for transgender adolescents. Gorsuch’s concurrence, which takes yet another shot at “nationwide” injunctions, provides a useful opportunity to reflect on exactly what his objections are—and whether he has been consistent in applying them (spoiler alert: not so much).

But first, the news:

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On the Docket

The Court was quite busy last week. In addition to Monday’s ruling on Idaho’s long-pending emergency application in Labrador v. Poe ex rel. Poe, the Court handed down four decisions in argued cases—bringing the total for the term to 18. In brief:

1. In Rudisill v. McDonough, Justice Jackson, on behalf of a 7-2 majority (Justices Thomas and Alito dissented), sided with a veteran in a complex statutory dispute over the interaction of two overlapping GI benefits programs. Perhaps more important than the details is Justice Kavanaugh’s concurrence, in which he (and Justice Barrett) argued against the so-called “veterans canon”—the principle of statutory interpretation under which ambiguous provisions in veterans benefits statutes are usually resolved in favor of the veteran. For now, at least, there appear to be five votes for preserving that canon. But that may not last.

2. In DeVillier v. Texas, Justice Thomas, in a very brief opinion for a unanimous Court, sent a property rights dispute back to the lower courts after it became clear that the major question the justices had agreed to resolve (whether states must provide adequate remedies for Takings Clause violations) wasn’t actually presented by the case at issue (because Texas does provide such relief). Thus, the Court vacated the Fifth Circuit’s holding that no such remedy was available or required, and sent the case back for further proceedings. Curiously, even though Texas (and the Fifth Circuit) thereby lost, Attorney General Ken Paxton claimed victory. Sigh.

3. In Muldrow v. City of St. Louis, Justice Kagan, writing for an effectively unanimous Court (Justices Thomas, Alito, and Kavanaugh each wrote separately to concur in the judgment), held that those challenging employment transfers on the ground that they violate Title VII of the Civil Rights Act of 1964 must show that the transfer caused them “some” harm with respect to a term or condition of their employment, but need not show that the harm was especially significant or substantial.

4. And in McIntosh v. United States, Justice Sotomayor held for a unanimous Court that federal district courts can impose civil forfeiture as part of a criminal sentence even if they have not satisfied the specific notice-timing requirements imposed by the Federal Rules of Criminal Procedure, so long as the defendant was not prejudiced by the district court’s non-compliance. In other words, the Court held that the question is whether the defendant received adequate notice of the potential forfeiture—whether or not the timing of that notice complied with the relevant rule.

As I noted on Twitter, the Court is really clearing out decisions in the less-politically-charged cases—which means, among other things, that we’re going to have quite a slew of important decisions come down in a fairly condensed period of time in May and June.

Last Monday’s regular Order List brought no new cert. grants—so we’re still stuck at two cases for next term. But as John Elwood pointed out in his indispensable “Relist Watch” column for SCOTUSblog, the Court relisted 14 petitions last week (11 of which raise the same issue). So it’s a good bet that we’ll get some more grants for next term as early as today’s regular Order List (which we expect at 9:30 ET).

Back to last week for a moment, the regular Order List included three opinions respecting denials of certiorari:

1. Justice Sotomayor filed a “statement” respecting the denial of certiorari in McKesson v. Doe, stressing that the Court’s intervening decision in Counterman v. Colorado likely bears (and, indeed, bolsters) Deray McKesson’s First Amendment defense on remand in the civil suit against him arising out of a Black Lives Matter protest in Baton Rouge, Louisiana;

2. Justice Sotomayor also filed a dissent from the denial of certiorari in Compton v. Texas, joined by Justice Jackson, arguing that a capital case in which prosecutors used 13 of their 15 peremptory challenges to strike women from the jury pool raised questions to which the lower courts should have given more careful consideration; and

3. Justice Jackson filed a dissent from the denial of certiorari in Michaels v. Davis, arguing that the Court should have summarily reversed the Ninth Circuit—a divided panel of which had held that, because of the weight of other evidence against the defendant, the trial court’s improper introduction of a confession obtained in violation of the defendant’s Miranda rights was harmless error.

Pivoting from rulings to arguments… After four big cases last week (including Fischer—in which the justices are considering narrowing one of the most common statutes used to prosecute January 6 defendants), this week is as big a week of arguments as we’ve seen in some time: The two arguments today include an enormously important case, City of Grants Pass v. Johnson, about whether local governments can prohibit camping on public property for those who lack “access to adequate temporary shelter.” And after two significant cases tomorrow, the Court on Wednesday will take up how EMTALA interacts with state laws that prohibit abortions except where necessary to save the life of the pregnant person (about which I’ve written quite a bit previously)—a dispute with massive ramifications in states with restrictive anti-abortion regimes. But arguments for the week (and for the October 2023 Term) will be capped off Thursday with the argument over whether former President Trump is immune from criminal prosecution arising out of his role in the events leading up to and on January 6.

[Exhale.]

With that much going on, it’s perhaps no surprise that the Court has not (yet) announced any forthcoming decision days. And there are also no pending emergency applications likely to provoke headlines this week.¹ In other words, the Court’s attention this week is really going to be focused on these arguments. As it should be.

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The One First “Long Read”:
Justice Gorsuch and Nationwide Relief

The typical injunction bars the defendant from taking/compels them to take a particular action against the plaintiffs. Injunctions have teeth because non-compliance subjects the defendant to contempt sanctions—fines that escalate with each day of non-compliance; civil confinement; etc. As a result, many injunctions are “nationwide” insofar as they constrain the defendant’s conduct against the plaintiff anywhere that the defendant can act against the plaintiff.

What folks are talking about when they use the term “nationwide injunction” is, unhelpfully, something else entirely: An injunction that bars the defendant from acting against anyone—and not just the plaintiffs in that case. (This is why “universal injunction” is more descriptively accurate, even if it hasn’t yet caught on.) For example, an “ordinary” injunction might bar the Attorney General from enforcing a statute against a particular plaintiff or group of plaintiffs. A “universal” injunction bars him from enforcing that statute against anyone.

There is a rich academic debate about the origins of such relief, which I won’t rehash here. As relevant for present purposes, everyone agrees, as documented in a fantastic new student note in the Harvard Law Review by Laura Aguilar and Leyla Rao, that there has been a remarkable uptick in these kinds of orders in the last decade or so, alongside an uptick in a related but distinct type of nationwide relief—when a court issues a nationwide “vacatur” of a rule promulgated by an executive branch agency under the Administrative Procedure Act. These developments, in turn, have prompted a series of academic and judicial debates about the propriety of such relief—and about how (if at all) the uptick in grants of universal injunctions and nationwide vacaturs have affected the Supreme Court’s docket, both at the emergency relief stage (on the theory that nationwide injunctions increase the number of cases in which parties can make out a case for emergency intervention) and the merits (on the theory that they raise the stakes of the underlying disputes, putting more pressure on the justices to step in). One might also note that the rise in these remedies has come, perhaps unsurprisingly, at the same time as the Supreme Court has made it much more difficult to certify nationwide class actions (where an injunction would have the same “universal” effect).

Through all of this, the one (outwardly) consistent critic of such relief on the Court has been Justice Gorsuch. Starting with an opinion concurring in the grant of a stay of a universal injunction against a Trump-era immigration policy in January 2020, Gorsuch has criticized the rise of universal injunctions and nationwide vacaturs; complained about its consequences; argued that federal courts lack the power to even fashion such relief; and urged his colleagues to rein in the practice. (The most well-developed example is his opinion concurring in the judgment in United States v. Texas last June.)

The latest of those opinions came last Monday, in support of the Court’s stay of (most) of a district court injunction against Idaho’s ban on gender-affirming medical care for transgender adolescents (the Court left the ban on hold as applied to the plaintiffs in that specific case). Joined, in this instance, by Justices Thomas and Alito, Gorsuch used the dispute to underscore exactly what, in his view, is wrong with relief that runs to non-plaintiffs.

As with Justice Kavanaugh’s separate concurrence, there’s a lot in Justice Gorsuch’s analysis that makes good sense. Yes, there have been more of these rulings in recent years. Yes, those rulings can, in some cases, put lots of additional pressure on courts. Yes, there are unanswered questions about the scope of federal courts’ power to issue such relief.

But there are at least four points (one might even say “four questions,” given what starts this evening) that Gorsuch never addressed in his concurrence, each of which ought to add at least a few grains of salt toward the push to bar federal courts from ever issuing such relief (as, for instance, a new bill introduced by Senator McConnell would).

First, not all universal injunctions are equal, and the Idaho case is a great illustration of how. The law being challenged in this case was not a federal policy that was blocked by a single federal judge in a single-judge division in a big state based on the harms of a single, unusual plaintiff; it was a state policy. More than that, it was a state policy in a state with a single federal judicial district (i.e., the only federal court in which such a policy could be challenged). More than that, it was a state policy that, at least according to the plaintiffs’ allegations, would have a chilling effect on the behavior of non-plaintiffs were it allowed to go into effect in full (a typical context in which the Court has, in the past, allowed “facial” challenges to state and federal laws, as opposed to challenges based on how they’re being applied to the plaintiffs). For all of the concerns that Justice Gorsuch has raised in the past about how universal injunctions cut off “percolation” of legal questions and restrict the ordinary development of diverse rulings from diverse lower courts across the country, that was never going to be in the cards in this case, making it an unusually poor vehicle through which to articulate such broader objections.

Second, and related, as Justice Kavanaugh pointed out in his concurrence, “vertical stare decisis” (the fact that holdings of appellate courts bind all courts over which they exercise appellate jurisdiction) would produce most of the same effects as universal injunctions even in cases in which plaintiffs seek (or courts award) narrower relief. In this case, for instance, were the Ninth Circuit to affirm the injunction on the ground that these kinds of state-law bans violate the federal Constitution, that holding would necessarily be precedent that the 15 different district courts in the Ninth Circuit (covering nine states and two federal territories) would be bound to follow. In that universe, a non-plaintiff in, say, Montana or Arizona or Guam would be at least the indirect beneficiary of the Idaho injunction. And if the Supreme Court were to affirm the injunction, well, you get the idea. The point is not that universal injunctions are the same as ordinary injunctions; they’re not. It’s that the supposedly harmful effects of universal injunctions are (1) not present in every case; and (2) not that distinct from ordinary injunctions in at least some cases. As I document in a forthcoming Harvard Law Review essay, universal injunctions/nationwide vacaturs just aren’t responsible for as much of the pressure on the Court’s docket as the justices might think.

Third, Justice Gorsuch never considers the virtues of universal injunctions, especially at a time in which certification of class actions has become so difficult. Again, the Idaho case is a good example: If you believe that Idaho’s ban on gender-affirming medical care for transgender adolescents is unconstitutional (and maybe you, and Justice Gorsuch, don’t—more on that shortly), presumably, you’d be worried about the possibility that litigating the ban’s unconstitutionality one case at a time (which, again, would be rather pointless in a state with a single federal judicial district—in which the same district judge would almost certainly hear subsequent challenges to the same state law as a “related case”) would prevent parents and their transgender children from engaging in conduct that the Constitution protects.

Consider this point from the perspective of federal immigration law: Imagine a legally flawed new policy issued by a President of the opposite party. The U.S.-Mexico land border alone includes states in three different circuits. What kind of chaos would it create if the federal government had to have different policies along the California-Mexico border than it has along the New Mexico-Mexico border of the Texas-Mexico border? And if the answer is that, in a world without universal injunctions, the federal government would likely choose whichever approach complies with the most restrictive court order, well, then an “ordinary” injunction would once again be benefitting non-plaintiffs.

Don’t get me wrong: I agree with Justice Gorsuch that universal injunctions have become far too pervasive. But rather than get rid of them altogether, I would rein them in—in at least two respects: I’d focus on identifying the circumstances in which they ought to be appropriate versus those in which they ought not to be (not all federal policies present the same case for nationwide uniformity as those pertaining to the border), and I’d limit the power of hand-picked, outlier federal district judges (versus three-judge district courts) to issue them. But whatever you think the right policy solution is, that kind of calculus is one that is better undertaken through the rulemaking process (or, dare I say, by Congress) than in hastily written opinions respecting emergency applications.

And that brings me to my biggest problem with Justice Gorsuch’s approach: It certainly appears to be inconsistent. If one believes universal injunctions and/or nationwide vacatur to be beyond the power of lower federal courts to impose, that presumably would mean voting to stay such relief (and, on the merits, to vacate or reverse it, at least in part) in all cases in which it was before you. And yet, here’s a non-exhaustive² list of 11 recent Supreme Court decisions in which Justice Gorsuch voted, or appears to have voted,³ in favor of a universal injunction or nationwide vacatur:

1. Chysafis v. Marks (Aug. 12, 2021) (voted to enjoin pending appeal part of New York’s COVID Emergency Eviction and Foreclosure Prevention Act— an injunction that was not limited to the applicants);*

2. Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs. (June 29, 2021) (voted to vacate a stay pending appeal of a nationwide vacatur of the CDC eviction moratorium);

3. Biden v. Texas (Aug. 24, 2021) (voted to deny a stay of a nationwide vacatur of the Biden administration’s rescission of the “Remain in Mexico” immigration program);*

4. Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs. (Aug. 26, 2021) (voted to vacate a stay pending appeal of a nationwide vacatur of the CDC eviction moratorium);*

5. NFIB v. Dep’t of Labor (Jan. 13, 2022) (voted to grant nationwide “stays” of OSHA’s vaccination-or-testing mandate for large employers—stays that were not limited to the applicants);*

6. Biden v. Missouri (Jan. 13, 2022) (voted to deny stays of two universal injunctions against CMS’s COVID vaccination mandate for health care workers at facilities receiving Medicare or Medicaid funds);

7. Biden v. Texas (June 30, 2022) (voted to affirm stay of nationwide vacatur of the Biden administration’s rescission of the “Remain in Mexico” immigration program);

8. United States v. Texas (July 21, 2022) (voted to deny a stay of a universal injunction against the Biden administration’s immigration enforcement priorities);

9. Biden v. Nebraska (June 30, 2023) (voted to leave in place the Eighth Circuit’s universal injunction pending appeal against the Biden administration’s student loan debt forgiveness program);

10. Garland v. Vanderstok (Aug. 8, 2023) (voted to deny a stay of a nationwide vacatur of the Bureau of Alcohol, Tobacco, and Firearms’ rule banning “ghost guns”);

11. Murthy v. Missouri (Oct. 20, 2023) (voted to deny a stay of a universal injunction against various federal officials’ communications with all social media companies);

You can probably figure out what these cases have in common. 10 of the 11 involved universal or nationwide relief against the Biden administration; the eleventh involved a statewide injunction against a New York state COVID restriction. In each of these cases, it doesn’t seem like a stretch to believe that Justice Gorsuch was opposed to what the government was doing, and was therefore willing to indulge relief that he otherwise won’t abide.

But if your opposition to universal injunctions/nationwide vacatur is only relevant in cases in which you’re in favor of the policy being challenged (or, perhaps, you’re ambivalent on the merits), then it certainly seems possible that your true objection isn’t to the scope of relief. At the very least, these examples sure seem to underscore that there’s more going on in these cases than just how broadly the district court’s remedy sweeps. Universal injunctions/nationwide vacatur are certainly worth further discussion (and, in my view, more constraints). But limiting them, or even taking them away entirely, wouldn’t actually get at the deeper problems plaguing today’s federal courts—and might cause more harm than good in the long term.

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SCOTUS Trivia: Chief Justice Stone Passes Away

Today is the 78th anniversary of one of the most shocking deaths of a sitting justice—when Chief Justice Harlan Fiske Stone suffered a cerebral hemorrhage while publicly reading his dissent in Girouard v. United States from the bench, and passed away a few hours later.

Stone’s unexpected passing was, among other things, a central flashpoint in the simmering “Black-Jackson Feud.” Justice Robert Jackson believed that FDR had promised him elevation to the Court’s center chair, but President Truman had made no such assurances—and Jackson, largely out of the loop due to his presence in (and duties to) the Nuremberg war crimes tribunal, handled the situation, and his growing clashes with Justice Hugo Black, … clumsily.

Truman, well aware of the internal rivalries then dividing the Court, looked elsewhere for his nominee—naming his Secretary of the Treasury (and former D.C. Circuit Judge) Fred Vinson as the 13th Chief Justice of the United States. Meanwhile, Stone’s tenure as Chief Justice was (and still is) the briefest since Oliver Ellsworth served 11 fewer days as the Nation’s third Chief Justice—from March 1796 to December 1800.

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Until then, happy Monday, everyone. I hope that you have a great week—and, for those who will be celebrating later tonight and this week, Chag Pesach Sameach!

1. A new emergency application is asking the Court to put back into effect a district court injunction against a Texas law that requires websites with sexually explicit content to provide a mechanism for verifying the age of their consumers, after a divided Fifth Circuit panel had stayed the injunction. I suspect this case (Free Speech Coalition v. Paxton) will generate interest from the full Court. But it won’t be this week. Justice Alito called for a response to the application by next Friday at 4 p.m. EDT—meaning that the application won’t even be fully briefed (with applicants’ reply) until next week.

2. I’m including only cases in which it is clear beyond doubt that lower courts issued universal or nationwide relief. The scope of the relief in West Virginia v. EPA, for instance, might also warrant inclusion—but I’m omitting it here because there’s at least some room for debate. I’m also not including any certiorari-stage votes—given the myriad considerations beyond the scope of relief that can influence whether the Court grants or denies discretionary review.

3. It is possible, in the cases marked with an asterisk, that Justice Gorsuch secretly dissented—since votes on orders can’t be divined unless (1) the justice publicly discloses it; or (2) enough justices publicly disclose their votes to identify the rest through the process of elimination. That said, and unlike, e.g., Chief Justice Roberts, I’m unware of any evidence that Gorsuch has secretly dissented before.