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Monday, September 27, 2021

Must SCOTUS Injunctions Abide By Precedent?

There now appears to be consensus at the Court that it may issue injunctions not only when claims are “indisputably clear,” but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable. 

Indeed, it is fair to say that every sitting justice has recently voted for at least one “anti-precedential injunction,” that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that “newly minted rights . . . cannot justify an emergency injunction pending appeal.” 

This controversy resembles debates over many other “clarity doctrines.” There are two basic ways forward:

1. The Court could decide that the applicable standard is fundamentally a measure of each voting justice’s confidence. The justices must be adequately certain that the claim is correct, or that the lower court erred in denying it. By analogy, consider a complex math puzzle. Even if most people—or most experts—get the puzzle wrong, an especially talented mathematician might know (or believe that she knows) the answer with complete confidence. True, focusing on internal confidence would be in tension with the “indisputably clear” standard that is often invoked in this area, given that phrase’s apparent focus on what can in fact be “disputed.” But perhaps it is time that that phrase be retired.

This approach would make room for Court injunctions that are contrary to Court precedent. If five justices are certain of the right answer, they may be equally certain that they would vote to overrule any contrary case law. To illustrate this point, consider Justice Thomas’s avowed willingness to overrule precedent that is “demonstrably erroneous.” If a justice is entirely certain that relief is proper on the merits, then any contrary precedent would be “demonstrably erroneous” and therefore (for Thomas) no precedential obstacle. On this view, the Court’s injunction would likely qualify as precedential, at least as a “signal,” even if not at the level of a precedent issued after the deliberative benefits of plenary review. 

One might reasonably worry that this approach would render the Court one of first view, leading to all manner of Court-issued injunctions as well as overly hasty and erroneous precedents. But, to some extent, those outcomes are already taking place, and the legal standard should at least reflect reality. Further, the requirement of extreme confidence on the part of the voting justice would preserve a significant limit on the availability of Court injunctions. Litigants could not obtain injunctions based on disputed facts or legal issues that the justices cannot immediately and confidently answer. 

Of course, many opportunities for Court injunctions would remain—particularly in our polarized legal culture. Today, perhaps more than in the past, Court majorities will feel instantly certain about legal propositions that lower courts have treated as dubious or simply incorrect. That polarization may help explain why the “indisputably clear” standard has either gone by the wayside or else been deemed met in hotly disputed cases. And if polarization is the problem, then we cannot expect any formal legal standard to be a pat solution.

2. Alternatively, the Court could commit to viewing the applicable standard as an inquiry into the state of the law as viewed by some imagined third-party. The claim for relief might have to be indisputably clear from the standpoint of, say, a lower court judge who is bound to apply extant case law. This approach would be prediction-based, in the sense that each justice would assess, not her own confidence, but rather her prediction of how confident someone else would be. The “indisputably clear” standard might have originated in a similar thought: when a single justice considers whether to issue an in-chambers injunction, he should think about whether his colleagues would dispute that relief.

Under this approach, anti-precedential injunctions can, and probably would, be prohibited. By way of analogy, the Court has adopted a prediction-based clarity test within the doctrine of qualified immunity. That doctrine places a premium on existing precedent and imagines how an official might understand case law. Again, a similar analysis might apply as to Court injunctions, substituting the official with a lower-court judge. A ruling that applied this kind of standard would generally set precedent only on the state of existing case law, not on how to extend those precedents or whether they are correct. A grant of relief might then be understood only as a protective measure to safeguard rights under existing doctrine. 

This approach is also susceptible to legislative implementation. Borrowing a page from habeas corpus legislation, Congress could require that any Court injunctions issue if, or only if, the lower court’s denial “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(2). Whether adopted by Congress or the Court on its own initiative, that solution would tether injunctive relief to a familiar form of predictive clarity. 

The problem here is that all the justices would at least sometimes be sorely tempted to break the rule to make room for doctrinal innovation. And that instinct is justifiable. Existing case law may not account for a new, startling reality. Or the justices’ views on a legal question might be out of step with older rulings. The Court’s role is, in part, to meet those novel or unanticipated problems. Those points help explain, and may justify, the justices’ apparent consensus on the availability of anti-precedential injunctions. Here again, increasing legal polarization matters: the hypothetical possibility of an anti-precedential injunction would not fatally undermine the prediction-based approach, but a succession of those injunctions would, returning us to the first option above.

*          *          *

Of course, there are additional considerations and approaches. We could imagine a special voting rule for Court-issued injunctions. Or the Court could formally disavow the “indisputably clear” standard in favor of a rule of perfect discretion, somewhat like certiorari. And other factors for granting injunctions can qualify or even outweigh the merits-based inquiry.

But the choice between certainty and predictability would continue to matter. If we care about the certainty of voting justices, then we might set a simple-majority voting rule, whereas a concern for predictability might support a super-majority or even unanimous voting rule. Adopting a rule of discretion would only move debates about certainty and predictability off the page, without eliminating them. And the other injunction factors, too, may be affected by the appropriate way to evaluate claims on the merits.

Posted by Richard M. Re on September 27, 2021 at 10:47 AM | Permalink


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Posted by: Neelab | Oct 7, 2021 5:14:55 AM

Which I suppose begs the question, regarding the precedent set in our Constitution, in regards to respect for the Sanctity of all human life, first and foremost, “Do no harm”, how can anyone truthfully argue that the act of elective abortion which destroys the life of a beloved son or daughter residing in their mother’s womb, or the act of mandating a vaccine that has the potential for some, whose number is unknown, to do more harm than Good, could possibly be Constitutional, without, of course, denying our inherent, Right to Life, which is Unalienable and thus cannot be rescinded, even if we so decided, because it comes not from Caesar but from God, with the capital G.

Posted by: N.D. | Oct 3, 2021 5:56:42 PM

“unlike SARS-CoV, cell entry of SARS-CoV-2 is preactivated by proprotein convertase furin, reducing its dependence on target cell proteases for entry. The high hACE2 binding affinity of the RBD, furin preactivation of the spike, and hidden RBD in the spike potentially allow SARS-CoV-2 to maintain efficient cell entry while evading immune surveillance. These features may contribute to the wide spread of the virus. Successful intervention strategies must target both the potency of SARS-CoV-2 and its evasiveness.”


Which begs the question, since furin regulates hepcidin, which regulates iron, perhaps it’s evasiveness is due to the fact that iron is necessary for health, and thus our immune system would not necessarily recognize a human furin receptor to be a foreign invader. One would expect that targeting the furin receptor for a short period of time, which s not possible with a vaccine, would be the safest way to fight Covid 19, while retaining health.

In regards to a Religious exemption to the vaccine mandate due to respect for the Sanctity of all human life, and thus the Sanctity of the innocent life of those sons and daughters residing in their mother’s womb, who obviously could not consent to having their body parts used for scientific experiments, one can know through both Faith and reason, that those persons who deny the personhood of a beloved son or daughter residing in their mother’s womb, having no objection to using their body parts in the past, will certainly continue to have no objection to using the body parts of beloved sons and daughters in the future, because they deny the fact that God Is The Author Of Love, not Caesar.

Posted by: N.D. | Oct 3, 2021 5:23:54 PM

I don't know if it's a step removed from his post, because its premise, as you correctly noted below, is that the Covid injunctions were at odds with Smith. I only half-agree; in fact I view the arguments that protocols that specifically said that church services + a + b + c were treated one way and d + e + f were treated another were neutral and generally applicable because church services were treated like a + b + c as frivolous and silly. But when we get to Tandon I think he's definitely right. (That compliance with Smith can turn on a drafting exercise is also true in equal protection law and only confirms to me that Smith's approach to facial neutrality is typical.) And perhaps more topically, that the Court in Fulton appears to recede from Tandon (not even the Justices whose concurring statements Tandon cites advance its reading of Smith in their separate Fulton opinions) is perhaps suggestive of the risks of making new law in these expedited proceedings.

On the other hand, the claim that the dissenting Justices in the Texas matter voted for an antiprecedential injunction, though true, needs to be qualified by the remarkable fact that three of them joined a dissenting opinion saying they really had no idea whether, and had serious doubts that, Texas's judges could be enjoined, and suggesting that an injunction should issue precisely because the question was difficult. So I don't think that case fits into what Richard's talking about, and goes more to whether it's appropriate to issue a stay-like injunction in important cases when the merits are murky.

Posted by: Asher | Sep 28, 2021 4:10:57 PM

The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. ... It can also be applied to other types of regulations, such as legislation affecting interstate commerce.“

We can know through both Faith and reasoning, that it is never necessary to destroy innocent human life in order to save innocent human life.

“In general, the principle of the least restrictive means, holds that public health measures should interfere with the autonomous freedom of individuals to the least possible or necessary extent.”

Human Furin is necessary for health, but can also be implicated in disease, because of its relationship to hepcidin and iron regulation.

In regards to the efficacy of the vaccine, the question is, which is the better means to protect oneself or others in regards to both health and disease?

Is a vaccine that targets furin, but does not provide lifetime immunity like one would get from the measles vaccine, because the vaccine does not target the actual virus, but rather targets the furin receptor on the spike protein of the virus, so that, for an as yet, unknown period of time, the virus is blocked from entering your cells and causing disease, as effective as being treated with medicine, when one’s own immunity is not sufficient to fight the disease, while building up your own natural immunity from the virus?
Given the fact that the best offense is a good defense, let us hope that all Governments, in moving forward, reevaluate the wisdom of vaccines, booster shots and the vaccination of children, in fighting this disease, with the understanding that it is not necessary or proper to target furin in the young, who are still in the process of growing and developing and who seem to have natural immunity to Covid 19, and that while, for a time , the vaccine did work by blocking the virus from entering the cells, slowing the spread, while giving those who are experts in the area of health and disease, time to come up with alternative treatments, we now have a much better understanding of both Covid 19, and the role of hepcidin in both health and disease.

We are now faced with a crisis for both the vaccinated and the unvaccinated :

“Hepcidin-Mediated Hypoferremia Disrupts Immune Responses to Vaccination and Infection”. Thus, in regards to Proportionality and disproportionate mandates, including mandating vaccines, versus mandating adequate medical treatment, one needs to know one’s hepcidin level in order to make an informed consent in regards to the safety and efficacy of the vaccine due to the addition of a furin receptor on the spike protein, which for some individuals has the potential to increase their hepcidin to a dangerous level, immediately, while for others, over time, resulting In hypoxia.

Thank God, the targeting of the furin receptor does not appear to be permanent, as that would have, at some point, ending up being deadly.





Full disclosure:

I am Pro Life.
I am not anti vaccine.Safe vaccines have saved countless lives.
I have received a vaccination for Covid 19, without being capable of giving full consent due to inadequate information regarding possible immediate or future harm, due to the targeting of the furin receptor on the spike protein of Covid 19.
I am neither a Doctor or Lawyer. I have a degree in Elementary Education and a Paralegal Certificate, which has been extremely helpful in my research of our family history with Hemochromatosis.The best way to balance and regulate iron for the purpose of both health and fighting disease, is beyond my comprehension, but I do know, that when it comes to both health, and fighting disease, the balance and regulation of iron is key.

Pray that Our Blessed Mother, Mary, will Intercede for us, and that Her Immaculate Heart Will Triumph Soon:



Posted by: Nancy | Sep 28, 2021 1:00:43 PM

Asher, the merits of Tandon's reading of Smith/Lukumi is a step removed from Richard's original post, so to avoid further hijacking his post, I'll just briefly note that: (1) your objections are not unreasonable; but (2) they would make applicability of Lukumi turn entirely on fortuities of legislative drafting:
namely, if all agree that there is a general category of conduct that is composed of certain specific sub-categories, one of which is religious and the rest of which are not, the applicability of Lukumi would turn on whether the govt formally prohibits the general category and then *explicitly exempts* certain sub-categories that are not materially different from the religious category with respect to the govt interest asserted, or instead formally prohibits only certain sub-categories (including the religious one) and thus *implicitly excludes* the comparable ones. Again, though, what to do about that insight is a more complicated question that goes beyond Richard's original post.

Posted by: Hash | Sep 28, 2021 9:38:00 AM

Let me just add that that paragraph of Tandon is a self-refuting reading of Smith. We all agree that Smith worked some change in the law. But this paragraph says that Smith's rule only applies when a law is tailored such that no comparable secular activity, relative to the state's interest, is treated better than religious exercise. The only laws that will satisfy that test are ones that are narrowly or perhaps even perfectly tailored. So Smith, on this reading, only exempts from strict scrutiny those laws that would pass it; therefore, Smith worked no change in the law. This can't be what Smith means, unless Lukumi overruled it, which it didn't. I suppose you can say that the difference that Smith works is removing the requirement that laws be narrowly tailored to a compelling interest; if they're narrowly tailored relative to *some* interest, than they escape strict scrutiny. (But if they're not, we effectively decide they aren't narrowly tailored in order to decide thatthey need to be narrowly tailored and then repeat everything we said to sort out what the applicable standard is.) That's a pretty bizarre test in so many ways, and I don't think it can possibly be what Smith amounts to. Not much turns on compelling interest vs. less-compelling interest; how many Smith cases involve an interest that isn't compelling?

Posted by: Asher | Sep 27, 2021 10:12:19 PM

Two things: I don't think Tandon, unlike Fulton, stops at saying selective exemptions from a general prohibition make a law not generally applicable; the first paragraph of the per curiam says it's enough that some "comparable" secular activity is treated better than some religious activity, whether or not it's carved out of a prohibition or is just a wholly different sort of activity altogether that only goes to the state's interest in regulation to a "comparable" degree. On this theory, Smith really ought to come out the other way because it's legal to drink absinthe in hallucinogenic quantities. And that's taking "comparable" possibly more narrowly than Tandon does; I'm not sure the Tandon Court, if it were being consistent, wouldn't say that tobacco and hard alcohol generally are comparable to peyote. Maybe that's wrong, but I can't see how this wasn't a completely new concept.

Second, I don't know what the selective exemption from the general prohibition of gatherings in Tandon was. I think California said that they just prohibited gatherings without exception, and the things that are supposedly so like gatherings may or may not have comparable risks to gatherings, but can at least be sensibly classified as something else, on a theory that a large number of people, some infected, sitting in place next to each other for hours is a different sort of thing than a large number of people moving through a mall or whatever. It seems to me like the mall situation is about as risky and that risk is just more evenly distributed, whereas in the church situation you have much higher likelihoods of infection for smaller numbers of at-risk people. But unless you're doing strict scrutiny to get to strict scrutiny, I think you have to accept rational explanations for why these formally different settings are materially different (e.g., not only in a mall does one not stand or sit next to the same person for hours, a lot of time in a mall is spent a considerable distance from anyone at all).

Posted by: Asher | Sep 27, 2021 9:48:16 PM

Asher, that's not an unfair view of Tandon and Fulton, but I do think it gives short shrift to certain aspects of Lukumi. Namely, while parts of Lukumi emphasized that the law by terms expressly called out religiously motivated killings of animals (by using words like sacrifice and ritual), other parts emphasized that the law included selective exemptions for similar conduct from an otherwise seemingly general prohibition (by exempting things like hunting from a prohibition on unnecessary killing). The relative weight to give the latter parts of Lukumi standing alone, and the relative degree to which comparable exemptions must exist before the law is no longer deemed "generally applicable" under Smith, was, in my view, the key doctrinal fight in both Fulton and the church covid cases.

Posted by: Hash | Sep 27, 2021 6:02:11 PM

I guess my take on the Covid church cases was: the orders that expressly denominated religious gatherings as part of a class to which a protocol applied weren't facially neutral and would never be deemed so in the equal protection context (imagine a set-aside for a long list of historically discriminated-against groups, one of which is Black people -- that's still a racial classification). But when you got to Tandon and you had a prohibition of "gatherings" that made no reference to religious gatherings specifically, that was neutral and generally applicable, even if other non-gathering activities might be said to pose comparable risks to gatherings as the state defined them, and the Court was essentially doing strict scrutiny to figure out whether to apply strict scrutiny. Fulton is a bit of a puzzler because it didn't apply any of the new law Tandon announced (or claimed had become clear from various concurring statements in the past church cases, which involved orders that expressly classified on the basis of religious exercise), but rather found non-general applicability on even an uncontroversial reading of Smith. I tend to think that some of the people in the Tandon majority had second thoughts about how they'd rewritten Smith in Tandon.

Posted by: Asher | Sep 27, 2021 4:22:03 PM

Important issue.

But, the idea, that one judge or justice, may consider the angel or view of third party observing the case, as if from the outside, is unreasonable with all due respect:

And first, judges are considered as the ultimate experts in interpreting the law. This is their inherent duty and expertise. So, what does one judge care about the external view, of one observer, if he is, subjectively, and objectively so, the ultimate expert in that field?

Of course, one may raise the argument of public opinion, public trust, yet:

One professional judge, must ignore it. One professional judge, is bound only by one thing:

The rule of law. That's it! Whatever others may think, he shouldn't care about it. Whatsoever, rulings are not really understood by majority of the people, it wouldn't matter.

Also, every judge, is a "lone wolf" in his work. No one can order him nothing while dealing with certain case. No one is, and can be authorized to intervene in his job ( unless in accordance with strict procedural and legal manner, by higher court). One senior judge in the supreme court for example, can't order or tell new comer, how to rule and prevail.

That is why (among others) judges have immunity.

For the rest, we won't stay young anymore....


Posted by: El roam | Sep 27, 2021 12:29:27 PM

Richard, I disagree with the factual premise at the outset of your post, and thus with some of the legal analysis that follows.

Namely, I strongly suspect that the Justices who voted for the covid injunctions believed that, despite Smith, the right to relief was "indisputably clear" under Lukumi's gloss on what counts as "neutral" and "generally applicable," in light of the exemptions that were provided. Indeed, given that the Court in Fulton *declined* to overrule Smith (including Justices Kavanaugh and Barrett, who were in the majorities for the covid injunctions), it seems *extremely unlikely* that the covid injunctions were implicitly premised on a contra-Smith view of the law.

Now, to be sure, the conclusion that the covid pltfs were entitled to relief under Smith and Lukumi (let alone clearly so) was vigorously disputed by both the dissenting Justices, lower courts, and many commentators. So the fact that the Court nevertheless (implicitly) held that the right to relief was "indisputably clear" does strongly suggest that the Court is applying your first approach, not your second approach. And fwiw, that makes a fair bit of sense when the full Court is acting -- denying an extraordinary appellate injunction if even a majority of the Court isn't certain about the entitlement to relief; but granting such relief if they are certain, including because they are confident that they will reject the counter-arguments made, however reasonable those may be. Incidentally, I suspect the Court's degree of confidence in the covid cases was not unrelated to the fact that Fulton was pending for plenary review at the same time, such that the Justices had given much more thought about the legal issues than they normally would on an emergency application.

Accordingly, I don't think you can fairly say, as you did at the outset, that the Justices all agree that injunctive relief by the SCt is appropriate even when the right to relief is "clearly disputable." While that is perhaps a fair characterization of at least some of the sb8 dissenters (I don't think any of them tried to suggest that the appellate relief requested was "indisputably" authorized despite the serious a3/sovereign-immunity objections raised), it is not a fair characterization of the covid majorities (which gave every appearance of sincerely believing that the right to relief was crystal clear despite Smith and the dissenters, especially since some of them declined to overrule Smith in Fulton).

And this matters because it leaves the key question you raise open: namely, whether the covid majority would apply your first approach so aggressively as to grant relief even when *they agree* that it *would in fact require overruling precedent.* It's not at all clear that they would do so, because they may well think that actually overruling precedent requires greater deliberation than an extraordinary appellate injunction, at least absent truly extraordinary interim harms.

Posted by: Hash | Sep 27, 2021 12:02:44 PM

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