Justice Gorsuch is right to be wary of relief that benefits non-parties. But as his latest opinion underscores, he's inconsistent in when it bothers him and wrong about how big a problem it really is.
I'm deeply concerned about the court moving away from universal injunctions. Please tell me I'm missing something and my concerns below are unfounded/mistaken.
First, it seems like any attempt to do so will necessarily result in a relatively technical and manipulatable rule which will mimic the effect of qualified immunity -- giving judges a clever trick that they can use to justify (to themselves and the legal community) that they are just nuetrally applying the correct legal standard but -- by changing exactly how the case is decided (a la whether to reach the question of unconstitutional before dismissing on QI) they gain broad but guilt free power to dictate policy. For instance, formulate a deciscion as holding a law facially unconstitutional you bind all the lower courts but if you withhold judgement on whether the law has enough constitutional applications then each affected party may still need to fight an expensive court battle to show they are similarly situated.
Which brings me to my primary concern. Like it or not the US courts have stepped in to fill the role of protectors of the people's rights and the bulwark against arbitrary and unjust treatment. Had they not done so, no doubt our political institutions would have invented some modern analog of the courts of equity that could have been placed in the executive or, perhaps even legislative, branch (or simply more APA like laws giving courts the explicit authority to nullify actions).
Unfortunately, the extremely high costs of litigation mean that often plantiffs can't possibly afford to vindicate their rights individually and I fear any formalist (discretionary is less clear) retreat from universal injunctions effectively denies many of those individuals those protections. True, it may not be common now, but, if adopted I fear states or even the feds may deliberately formulate their laws in a way that makes it unworkable for individuals to economically defend their rights because they'd have to bring their own lawsuits.
> (and maybe you, and Justice Gorsuch, don’t—more on that shortly)
This parenthetical is a little unclear. You come back to the specter of merits weighting in universal injunctions, but never again touch on the constitutionality or lack thereof in banning particular groups of people from receiving certain kinds of medical care. Not trying to "gotcha" you or anything; the end of the article just came as a bit of a surprise because I was expecting the Idaho case specifically to come back up.
Sorry! I thought it was clear at the end that Justice Gorsuch's voting pattern suggests that at least *part* of what's going on here is his hostility to *any* injunction against this law, not just a universal injunction. Otherwise, why would he so often vote in *favor* of universal injunctions/nationwide vacaturs in cases in which it's fair to suspect that he's more sympathetic to the lower-court rulings?
Surely there is a big analytical difference between enjoining a state law and enjoining a federal law. For one thing, states seem to enact laws in clusters based on party domination, which allows for separate challenges in multiple districts and probably circuits. Also, federal district courts seem to be the primary fora for vindicating Equal Protection claims.
With federal laws you can get the spectacle of dueling injunctions, as the recent case where one court compelled the government to do something that another court forbade.
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1)****** is given an unconditional right to intervene by a federal statute; or******
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Therefore When challenging federal policies which apply nationwide and there are equally situated individuals in other jurisdictions INJUNCTIONS OUGHT TO BE NATIONWIDE as allowed by the aforementioned rule
I'm deeply concerned about the court moving away from universal injunctions. Please tell me I'm missing something and my concerns below are unfounded/mistaken.
First, it seems like any attempt to do so will necessarily result in a relatively technical and manipulatable rule which will mimic the effect of qualified immunity -- giving judges a clever trick that they can use to justify (to themselves and the legal community) that they are just nuetrally applying the correct legal standard but -- by changing exactly how the case is decided (a la whether to reach the question of unconstitutional before dismissing on QI) they gain broad but guilt free power to dictate policy. For instance, formulate a deciscion as holding a law facially unconstitutional you bind all the lower courts but if you withhold judgement on whether the law has enough constitutional applications then each affected party may still need to fight an expensive court battle to show they are similarly situated.
Which brings me to my primary concern. Like it or not the US courts have stepped in to fill the role of protectors of the people's rights and the bulwark against arbitrary and unjust treatment. Had they not done so, no doubt our political institutions would have invented some modern analog of the courts of equity that could have been placed in the executive or, perhaps even legislative, branch (or simply more APA like laws giving courts the explicit authority to nullify actions).
Unfortunately, the extremely high costs of litigation mean that often plantiffs can't possibly afford to vindicate their rights individually and I fear any formalist (discretionary is less clear) retreat from universal injunctions effectively denies many of those individuals those protections. True, it may not be common now, but, if adopted I fear states or even the feds may deliberately formulate their laws in a way that makes it unworkable for individuals to economically defend their rights because they'd have to bring their own lawsuits.
Happy Passover to all.
> (and maybe you, and Justice Gorsuch, don’t—more on that shortly)
This parenthetical is a little unclear. You come back to the specter of merits weighting in universal injunctions, but never again touch on the constitutionality or lack thereof in banning particular groups of people from receiving certain kinds of medical care. Not trying to "gotcha" you or anything; the end of the article just came as a bit of a surprise because I was expecting the Idaho case specifically to come back up.
Sorry! I thought it was clear at the end that Justice Gorsuch's voting pattern suggests that at least *part* of what's going on here is his hostility to *any* injunction against this law, not just a universal injunction. Otherwise, why would he so often vote in *favor* of universal injunctions/nationwide vacaturs in cases in which it's fair to suspect that he's more sympathetic to the lower-court rulings?
Like I said, I wasn't confused at all about your thoughts on the matter! Just what I should expect to be covered in the rest of your article.
Surely there is a big analytical difference between enjoining a state law and enjoining a federal law. For one thing, states seem to enact laws in clusters based on party domination, which allows for separate challenges in multiple districts and probably circuits. Also, federal district courts seem to be the primary fora for vindicating Equal Protection claims.
With federal laws you can get the spectacle of dueling injunctions, as the recent case where one court compelled the government to do something that another court forbade.
Gorsuch: has a good point that he doesn't apply consistently & misses the nuances.
Peak NG.
Let's look at Rule 24(a) . FRCP
Rule 24. Intervention
Primary tabs
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1)****** is given an unconditional right to intervene by a federal statute; or******
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
Therefore When challenging federal policies which apply nationwide and there are equally situated individuals in other jurisdictions INJUNCTIONS OUGHT TO BE NATIONWIDE as allowed by the aforementioned rule