While judges have the authority to issue temporary injunctions to protect one of the parties in a case from harm while the court considers the case, the Trump administration claims the judges have abused this power, claiming to protect people across the country who aren’t parties to the suit.
Sauer noted that courts have issued 40 universal injunctions against the federal government, including 35 from the same five judicial districts.
He argued that these injunctions “prevent the percolation of novel and difficult legal questions” through the normal legal process. He also argued that “they encourage forum shopping,” that is, parties filing lawsuits in certain areas, seeking friendly judges who will issue injunctions on their behalf. He further argued that they circumvent Rule 23, the process by which plaintiffs apply for class action.
“They create what [Supreme Court] Justice [William] Powell describes as repeated and essentially head-on confrontations between the life-tenured and representative branches of government,” Sauer added, referring to a justice who served from 1972 to 1987. //
Justice Clarence Thomas asked Sauer about the history of universal injunctions, and the solicitor general pointed to 1963 as the first example.
“We survived until the 1960s without universal injunctions?” Thomas asked.
“Correct,” Sauer responded. “Those were rare in the 1960s. It exploded in 2007. The 9th Circuit started doing this with a bunch of cases involving environmental claims.”
The solicitor general noted that “the court consistently said you have to limit the remedy to the plaintiffs appearing in your court.” //
In response to questions from Justice Brett Kavanaugh, Sauer brought up the history of President Franklin Delano Roosevelt’s New Deal, where “there were passionate challenges to nationwide policies,” but when judges held New Deal policies illegal, they issued “hundreds of injunctions protecting individual plaintiffs.” //
Justice Ketanji Brown Jackson, President Joe Biden’s appointee, suggested that universal injunctions might be healthy for the judicial system.
“It seems to me that when the government is completely enjoined from doing the thing it wants to do, it moves quickly to appeal that,” bringing the case to the Supreme Court.
Sauer responded that the courts are supposed to work more slowly, methodically considering cases and not rushing them through emergency dockets to the Supreme Court. The “percolation” of cases through lower courts up to the Supreme Court is “a merit of our system, not a bad feature of our system,” he responded.
