Conservative judges will still be able to issue universal injunctions despite Trump v. CASA
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In the wake of yesterday’s ruling waving the matador’s cape at Trump’s nullification of the 14th Amendment, some people are anxious to announce that the turnip truck is missing a passenger:
As I’ve said before, one of the key texts to understanding an important mode of legal commentary is Mark Tushnet’s “Renormalizing Bush v. Gore: An Anticipatory Intellectual History.” No matter how nakedly partisan a ruling, people need to believe in a Court that is creating neutral rules like a 6-year-old needs to believe in the Easter Bunny:
One immediate reaction to Bush v. Gore,’ on both sides of the political spectrum, was to think it a narrowly partisan decision. The decision’s obvious effect was to award the Presidency to George W. Bush, and it was difficult to avoid inferring that the five-Justice majority intended to accomplish the natural consequences of its actions. So, the immediate reaction I have described was readily translated into the thought that Bush v. Gore demonstrated, much to the dismay of many, that critical legal studies arguments, or at least legal realist ones, were correct. Critical legal studies had been widely reported to be, in Duncan Kennedy’s words, “dead, dead, dead.” Bush v. Gore seems to have let critical legal studies arise like Lazarus from the grave.
There are reasons, though, that the demise of critical legal studies had been widely reported.’ The critical legal studies claim that law, properly understood, was indistinguishable from politics, properly understood, was quite threatening to the self-understanding of legal elites. Justice Robert Jackson once referred to the “mental reservations one has in teaching of Santa Claus or Uncle Sam or Easter bunnies or dispassionate judges.” It is one thing to have those reservations, another to be reminded of them, and yet something else to be hit over the head with the realization that judges are not always dispassionate. Legal elites are heavily invested in insisting that there is a real difference between law and politics. They are also invested, though slightly less so, in insisting that judges typically do law rather than politics. These investments, and the threat to them posed by critical legal studies and the immediate reaction to Bush v. Gore, meant that something had to be done to take the sting out of the criticisms that the decision was infected by blatant partisanship.
It may be remarkable to see people assert that, after four years of doing nothing while hack District Court judges universally enjoined Biden administration policies and then announcing a rule against them to protect a wholly lawless executive order by the Trump administration, the Court has created a rule that will now apply to presidents of both parties going forward, but if you can believe this after Bush v. Gore I guess you can believe anything.
As Steve Vladeck observes, to understand what’s actually going on, you need to look carefully at Kavanaugh’s concurrence:
Of course, it is factually correct that the Court has been far more involved in settling the “nationally uniform interim answer” recently; I can even think of some good citations for that proposition. :-) Justice Kavanaugh’s opinion goes on to explain why that’s been a good thing—by purporting to respond to (unidentified) critics of the Court’s recent behavior on emergency applications. Putting aside that several of his responses are directed at strawmen, and that I continue to strongly disagree with the rest, the key for present purposes is to highlight the commitment that he’s making—that the emergency docket isn’t going anywhere, and that the Court will continue to regularly grant or deny emergency relief as necessary to set what a majority believes the “nationally uniform interim answer” ought to be.
In other words, Kavanaugh is effectively inviting both the government and litigants challenging government policies to use the emergency docket even more—not just in cases in which there is some compelling exigency, but in any case in which there’s a need for that kind of nationwide (interim) uniformity. Depending on what happens with class actions, there could be a lot more of those very soon (e.g., if we start seeing numerous different lawsuits challenging the same policy, and those suits produce inconsistent rulings). As busy as the shadow docket has been this term, apparently, Justice Kavanaugh is cool with it being even busier. But will his colleagues agree?
One of the central problems with the Court’s approach to emergency applications in recent years has been its seeming inconsistency—granting emergency relief to Republican presidents or governors in very similar contexts to those in which it denied emergency relief to Democratic presidents or governors (in two immigration cases, for instance, the Court ruled for the Biden administration at the merits stage after denying applications to stay universal injunctions against the Biden policies). Do we expect the justices to all of a sudden be consistent when it comes to their resolution of emergency applications—especially if they’re getting more of them? And without written explanations (the norm in such cases), how will we even know?
Kavanuagh’s concurrence is best read as a roadmap reminding everybody that universal injunctions, or their equivalent, will still be available for litigators that the Republican majority on the Supreme Court likes. Your Matthews Kacsmaryk and Aileens Cannon will certify class actions or claim that in a particular case a universal injunction is necessary for complete relief, and no matter how frivolous the Supreme Court can at a minimum keep national injunctions against Democratic presidents alive for years simply by refusing to stay the injunctions without explanation. It’s amazing that people can watch the Court flagrantly ignore its own rules about when emergency stays should be issued an think that this is the rule that’s going to be implied impartially.
As Vladeck says, CASA represents a “massive shift in power—not just between the federal courts and the other institutions of government, but between the Supreme Court and lower federal courts.” And the latter is critical. The Court isn’t trying to eliminate the practice of universal injunctions; it’s just arrogating power for itself to ensure that they can generally only be effectively issued against Democratic presidents.
