Americans aspire to government under the rule of law. Courts and judges play a central role in ensuring the rule of law, and they are composed of human beings. One of the great challenges for the American legal system is to achieve the rule of law without the rule of judges — to be governed by the objective law, not by the subjective views of individual judges. Although the subjectivity that comes with the individuality of judges inevitably matters, the less that personalities matter, the more the law rules. So-called universal remedies enhance the power of individual judges and pose a problem for the rule of law.

In several high-profile challenges to federal policies in recent years, federal trial courts have issued what are called universal remedies or nationwide injunctions. A universal remedy against the government operates as to all persons affected by the government decision at issue, whether or not they are parties to the lawsuit in which the remedy was issued. Federal trial courts, with minor exceptions, consist of one federal judge. By issuing a universal remedy that affects parties and nonparties alike, a single judge can decide for the entire country, which is why universal remedies are often called “nationwide remedies.”

A good way to understand cases involving universal remedies is to contrast them with cases in which the remedy involves only the parties to the case, even though the case may raise an important issue of broad applicability. Significant constitutional issues often come up in criminal prosecutions if, for example, the defendant relies on a constitutional protection such as the First Amendment. A federal criminal prosecution begins in a federal trial court, presided over by a single judge. A criminal defendant can raise a constitutional argument as a defense, asking that the case be dismissed. Suppose a defendant makes a constitutional argument and the trial judge agrees, dismissing the prosecution. The decision of a federal trial court has no binding force as precedent in later cases, so at that point the decision’s only practical effect is on the parties. If the government appeals the dismissal and the federal circuit court of appeals agrees with the trial court on the constitutional question, the appeals court will set a binding precedent for future cases only for that circuit; the precedent will not be nationwide. Only if the Supreme Court grants review will the case produce a precedent that binds all lower courts, state and federal.

In that familiar form of litigation, the trial court’s decision binds only the parties, and only the Supreme Court in effect binds everyone. Consider by contrast a universal-remedy case, recently decided by a federal trial court, that involves regulations issued by the Department of Health and Human Services (HHS). The regulations enforce a federal statute that prohibits institutions that receive federal funds from discriminating on the basis of sex. The new regulations direct recipients of federal funds, including many state health-care programs, to treat gender identity as sex for purposes of that anti-discrimination requirement.

Tennessee, Mississippi, and several other states sued the HHS in federal trial court in Mississippi, arguing that equating gender identity with sex was unlawful under the statute and asking for an order telling the agency not to enforce the regulations. Orders forbidding enforcement of regulations are a standard remedy. Usually the court’s order directs the agency not to enforce the regulations against the plaintiff. A court’s holding that a regulation is unlawful may have broader precedential force, especially if the court is the Supreme Court, but the order usually operates only as to the parties.

In the recent case in Mississippi, however, the trial court issued a so-called universal injunction, directing the HHS not to enforce the regulations against anyone, anywhere. As long as the court’s order is in place, the regulations are in practice inoperative. A single judge thus in effect did what only the Supreme Court of the United States normally can do. Whether a universal remedy was legally permissible turns in part on fine points of federal administrative law with which I will not bore the reader. This essay concerns the question whether universal remedies are a good way to achieve the rule of law.

One familiar means to foster the rule of law without the rule of judges is to have important decisions made by multi-judge panels. That way, the personal views of a single individual cannot control. Federal circuit courts generally sit in panels of three, and those courts can convene all their judges to decide a case that raises especially important issues. For more than a century, the Supreme Court has had nine justices.

Another means to the rule of law is to submit the same legal question to several courts in different cases over months or years. More judges and more time can filter out the distinctive views of individuals and better approximate the ideal of objective law. In Supreme Court parlance, allowing multiple decisions over time is called “percolation of an issue,” and the justices often let an issue percolate so that, if they ultimately decide it, they will have input from many lower courts.

With a universal remedy, a single judge decides an issue at the outset. Even if the question ultimately comes before the Supreme Court, the review process is usually much faster and includes fewer lower-court decisions. Maybe for some ideologically charged issues, that does not matter very much. Sometimes everyone knows how the Supreme Court will resolve a question and can predict the vote, and so, one might think, why wait? Sometimes the prediction turns out to be correct, but the rule of knee-jerk responses is not the rule of law. The rule of law, when it is achievable, often takes time, which is time well spent.

Allowing a single lower-court judge to resolve an issue for the whole country early in the process of litigation might seem to further the rule of law in one way. If the relief that trial courts give is limited to the parties, only they will benefit from it. Uniformity of treatment is part of the rule of law. Uniformity through universal relief, however, illustrates how much weight such remedies give to the possibly idiosyncratic views of a single judge. If three challenges to a government action fail and the fourth succeeds and produces a universal remedy, one judge, again, will have decided for the whole country.

Opponents of regulation might think they should favor an arrangement in which opponents can keep trying until they find a judge who agrees with them. Universal remedies, however, can be given against deregulatory decisions just as they can be given against agency decisions that increase regulatory burdens.

The rule of law, like many great principles, must be implemented in ways that entail trade-offs. Sometimes the benefits of dispersed judicial decision-making should yield to the interest in quick and uniform decisions. Congress, which has substantial authority to choose how federal administrative action is subject to judicial review, can decide how to reconcile competing interests. This essay does not dig into what Congress can do in structuring judicial review of agency action, or into the ongoing debates about what Congress has done (in which this author has participated). Rather, the point is that giving a single lower-court judge authority in effect to determine for everyone throughout the country the legality of a government action strains the search for impersonality and objectivity that is central to the rule of law.