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Tuesday, June 26, 2018

(SCOTUS Term) Thomas adopts universality, rejects injunctions

I may have more to say about Trump v. Hawaii later, but I wanted to start with Justice Thomas' concurring concurring opinion on scope-of-injunction. (The majority, having rejected the merits of the plaintiffs' argument, says it is unnecessary to reach that issue).

Thomas begins with a footnote adopting "universal" as the "more precise" term because the injunctions are distinctive because thet "prohibit the government from enforcing a policy with respect to anyone, including non-parties--not because they have wide geographic breadth." (Unfortunately, Thomas does not cite me for the nomenclature point). Instead, he relies heavily on Sam Bray's discussion of the history of equity and universal injunctions. He then rejects scholarly counter-arguments--protecting non-parties and constraining the executive--as not justified by historical limits on equitable and judicial power. He closes with "[U]niversal injunctions are legall and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so."

[Update: I should have included Justice Sotomayor's brief, conclusory discussion. She argues that given the nature of the Establishment Clause violation, a universal injunction was necessary to accord complete relief to the plaintiffs and was dictated by the extent of the violation established.]

Posted by Howard Wasserman on June 26, 2018 at 12:07 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Thanks for drawing our attention to that interesting ruling , and particularly to that section or opinion of justice Thomas . His analysis or objection to Universal injunctions , rests mainly on historical basis , ignoring functional and structural analysis . According to him it does contradict not only the tradition , but the power granted by the constitution . But article III , mentions specifically , that :

" The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…….

So , we read clearly , that judicial power ( including lower federal courts of course ) arises under " this constitution " that is to say , the constitutional cases by nature , are also of course , a matter of courts . That is to say , that unlike his opinion , federal courts , need to deal , not only with individual rights , or class of individuals , but , with constitutional matters . That is to say that :

The conduct of the executive branch , the conduct per se , is a very relevant issue , dictated so by the constitution in a federal regime naturally as such . However , the nature of the federal regime , is to issue decisions or make policies , that touch , the whole federal structure as such . The federal structure embraces the whole structure ( as well as the federal constitution ) . That is to say , that it must deviate in the appropriate cases , from specific dispute , and touch the whole federal structure per se .

So , it would be an insult , to public trust , if such impairment or lack of uniformity in reading and perceiving federal constitutional principles , shall reign on such system . What is prima facie , unconstitutional , in such degree , where further cases wouldn't change the merits or results , then , the conduct of the federal or executive branch , must be at once blocked . This can't be open to no negotiation further . One may argue or debate on the scale , but , not the very possibility , in very extreme cases at least .


Posted by: El roam | Jun 26, 2018 2:51:21 PM

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