The Constitution established one court and one court only and called it Supreme. The framers authorized Congress to establish “inferior courts,” which it did starting in 1789, in the form of U.S. district courts and circuit courts. In theory, Congress could disestablish all of them. And no doubt there are times that President Trump wishes it would.
In the absence of such legislation, administration lawyers are doing the next best thing, leapfrogging over courts of appeals to find relief at the Supreme Court, now dominated by conservatives, including two Trump appointees, in an effort to trim the sails of the lower courts.
The administration has had mixed results with this tactic. But on Tuesday Trump’s lawyers scored a victory, albeit a partial one, when the Supreme Court invalidated a nationwide injunction issued by district court judges in separate cases against the administration’s ban on transgender people serving in the military.
In doing so, while at the same time declining to consider the merits of the case, the court’s conservative majority, without writing a word, sent a message to the lower courts to pull back on nationwide orders. (Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan did not agree.)
This is no small thing. It’s a major issue in the lower courts, in Congress, where legislation has been proposed to limit nationwide injunctions, among academics and now increasingly at the Supreme Court.
The alternative to a nationwide injunction, in the transgender case, for example, is an order that applies only to the plaintiffs. In other cases, it may apply to a particular district’s geographical boundaries but no further.
Approval or disapproval of nationwide injunctions, at least among politicians, tends to depend on what’s being enjoined and by whom.
Then-Attorney General Jeff Sessions inveighed against them in an October speech, after feeling the bite of such orders on a regular basis. “Activist judges,” he complained, “are reaching beyond the parties before them to shut down the entire administration of executive branch policy nationwide.” They have been “growing in frequency and, since President Trump took office less than two years ago, 27 district courts have issued such an order.”
But Republicans did not howl when a district court judge in Texas, Andrew Hanen, used a nationwide injunction against President Barack Obama’s implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA.) Nor did they object to their use, largely by judges in Texas, according to Zayn Siddique’s article in the Columbia Law Review, against “union organizing, overtime pay” and “transgender bathrooms.”
“It might be tempting to group these injunctions . . . under the heading ‘Don’t Mess with Texas,’ ” Siddique wrote, “but the reality is that nationwide injunctions are far from ‘unprecedented’ — they are a regular feature of the equitable jurisprudence of federal courts.”
But that’s not the law review article Solicitor General Noel J. Francisco quoted in his request for a stay in the transgender cases, after saying he was making the plea “with great reluctance.” He went with Samuel Bray in the Harvard Law Review:
“‘Given the sweeping power of the individual judge to issue a national injunction, and the plaintiff’s ability to select a forum,’ ” Francisco told the court, quoting Bray, “it raises the prospect that a plaintiff will engage in forum shopping, or that plaintiffs will file in multiple courts in the hope of obtaining a single favorable nationwide ruling. ... So long as any court of appeals lets stand a single nationwide injunction — which they largely have, with limited exceptions — it prevents the implementation of executive branch policies nationwide or even globally.”
Such injunctions used to be rare, Francisco said, but “in less than two years, federal courts have issued 25 of them, blocking a wide range of significant policies involving national security, national defense, immigration, and domestic issues.”
The administration, as Francisco suggested, is under siege in the lower courts. In just two years, Trump has encountered more resistance in the country’s district and circuit courts than any president in modern history. It began in the first months of his presidency, when federal district courts invalidated his travel ban.
Bray is a popular man among conservatives.
Justice Clarence Thomas, in a concurrence in the travel ban case, Trump v Hawaii, cited his article eight times, as he expressed his skepticism “that district courts have the authority” to “enter universal injunctions,” as they are more grandly known.
“Universal injunctions are legally and historically dubious,” Thomas wrote. “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.”