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Tuesday, June 26, 2018

SCOTUS Term: Bad News for the Universal Injunction

To follow up on Howard's post: one understated result of this morning’s travel-ban decision may be to hasten the demise of the universal injunction.

Ordinary injunctions protect the parties who obtain them. That can include class members, if the case involves a plaintiff class. But in recent years,  district courts have started to regularly award what Howard describes as "universal injunctions" (sometimes called "nationwide injunctions," or even "cosmic injunctions"). These binding orders regulate a defendant’s conduct even as to people who’ve never appeared in court—and, more importantly, who aren’t legally represented by those who did appear.

The travel-ban case involved just such an injunction. But because of the way it was brought, with the State of Hawaii able to advocate for the interests of various other persons, it would have made for a messy analysis. By disposing of the case on the merits, the Court ended up avoiding any detailed discussion of the injunction or its scope. (Justice Thomas discussed it at length in his concurrence—citing excellent work on the topic by Sam Bray, among others. And Justices Sotomayor and Ginsburg would have upheld the injunction, though I agree with Howard that the relevant footnote doesn't really explain why.)

So the next opportunity for the Court to reach the issue may be the government’s stay application in the sanctuary-city case. There, the City of Chicago sought and obtained an order forbidding the policy’s application to every locality in the United States. But without an order certifying a class, Chicago ordinarily doesn’t have the right to act as a legal representative for other cities—some of which might like the policy, or which simply might be indifferent. Chicago can sue to protect its own interests, but not to vindicate an abstract position on whether a policy is lawful, much less to obtain binding court orders about (say) the conditions on federal funding for Tampa. So the government has pressed the issue, asking the Court to stay only that portion of the sanctuary-city order which applies to other cities.

Which the Court might well do. As others have noted, the Chief Justice's opinion for the Court in the Gill v. Whitford redistricting case sounded plenty of relevant notes, in explaining why the Gill plaintiffs couldn't sue to reshape the state's legislative districts as a whole:

The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff ’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.” Reynolds, 377 U. S., at 561; see, e.g., Moss v. Burkhart, 220 F. Supp. 149, 156–160 (WD Okla. 1963) (directing the county-by-county reapportionment of the Oklahoma Legislature), aff ’d sub nom. Williams v. Moss, 378 U. S. 558 (1964) (per curiam).

Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___ (slip op., at 7). This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis, 518 U. S., at 357.

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.” Ex parte Lévitt, 302 U. S. 633, 634 (1937) (per curiam).

What's more, the Court rested this discussion on constitutional grounds:

Our power as judges to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff ’s particular claim of legal right.

If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries, then it's hard to see it upholding the universal injunction.

[UPDATE 6/27: Sam Bray summarizes new developments on the universal-injunction front. Among them, the Seventh Circuit has granted the government's stay request in the Chicago case, meaning that the stay application to the Supreme Court is now moot. (He also notes that the Seventh Circuit "refers to the injunction as 'STAYED as to geographic areas in the United States beyond the City of Chicago' [emphasis added]; footnote 1 of Justice Thomas's opinion is more precise, distinguishing places and parties.") ]

Posted by Stephen Sachs on June 26, 2018 at 01:34 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Scholarship in the Courts | Permalink

Comments

"If the Court really is committed to resolving particular claims of legal right, with remedies targeted at the plaintiff's own injuries . . ."

If it were really committed to that, we would have seen more people joining Thomas's opinion on severability in Murphy v. NCAA, a case where there weren't as strong incentives as there were in Gill for the Court to purport to be committed to only remedying the plaintiff's own injuries. But as things turned out, apparently only one Justice thinks there's a problem with litigants litigating the severability of parts of a statute that don't injure them at all.

Posted by: Asher Steinberg | Jun 26, 2018 2:53:59 PM

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