In an excellent opinion by Justice Barrett, the Supreme Court ruled today in Trump v. CASA, Inc. that a federal court’s authority to enjoin government officials from enforcing a challenged law or policy extends only with respect to the plaintiffs in the lawsuit. A federal court does not, that is, have power to issue a “universal injunction” that prohibits enforcement of a law or policy against everyone (or against anyone other than the plaintiffs). The Court ruled by a vote of 6 to 3, along ideological lines.
The ruling is very welcome. It should have been unanimous, and I’m a bit surprised that Justice Kagan didn’t part company with her liberal colleagues to join it.
That said, at least in the short term, the ruling is probably going to accomplish much less than many people celebrating it realize. As Justice Alito points out in a concurring opinion (joined by Justice Thomas), there are two unresolved issues that “potentially threaten the practical significance of today’s decision: the availability of third-party standing and class certification.”
I’ll first outline Barrett’s opinion and then turn to Alito’s concurrence. Here’s a very brief summary of Barrett’s affirmative case:
A universal injunction can be justified only as an exercise of equitable authority, yet Congress has not granted federal courts the power to issue universal injunctions. The statutory grant of equitable authority encompasses only those sorts of equitable remedies traditionally accorded by courts of equity at our country’s inception. But neither the universal injunction nor any analogous form of relief was available in the High Court of Chancery in England at the time of the founding.
The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority.
Barrett then addresses the counterarguments that Justice Sotomayor presents in the principal dissent (joined by Kagan and Jackson). See pp. 11-21.
Barrett’s response (pp. 21-24) to Justice Jackson’s solo dissent is a fun read (citations omitted):
[Justice Jackson] chooses a startling line of attack that is tethered neither to [conventional legal] sources nor, frankly, to any doctrine whatsoever…. [S] he offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to “order everyone (including the Executive) to follow the law—full stop.” …
Justice Jackson appears to believe that the reasoning behind any court order demands “universal adherence,” at least where the Executive is concerned. In her law-declaring vision of the judicial function, a district court’s opinion is not just persuasive, but has the legal force of a judgment. Once a single district court deems executive conduct unlawful, it has stated what the law requires. And the Executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere.
We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.
As expected, Barrett’s opinion does not address the birthright-citizenship question at issue in the underlying cases.
Now to Alito’s concurrence.
Alito joins Barrett’s decision “in full,” but he expresses his concern that “[l]ax enforcement of the requirements for third-party standing and class certification would create a potentially significant loophole to today’s decision.”
As Alito explains, if states can sue to vindicate the rights of individual residents and if an injunction binds the defendant with respect to all residents of the state, then states will have every incentive to bring third-party suits on behalf of their residents to obtain a broader scope of equitable relief than any individual resident could procure in his own suit. Rigorous and evenhanded application of limitations on third-party standing would prevent this abuse.
Alito likewise observes that the Court’s decision will have very little value if district courts award relief to broadly defined classes without following Rule 23’s procedural protections for class certification.
I’ll be very surprised if liberal district-court judges don’t make aggressive use of third-party standing and class certification to impose injunctions that are the virtual equivalent of universal injunctions.