Promo for My Travel Ban Column -- and a Thought About Justice Thomas's Potshot at Nationwide Injunctions

by Michael C. Dorf

My latest Verdict column identifies a number of silver linings in the Supreme Court's generally disheartening Travel Ban decision yesterday. In it, I discuss the majority opinion of CJ Roberts, the concurrence of Justice Kennedy, and Justice Sotomayor's dissent. I don't discuss the Thomas concurrence or the Breyer dissent. Here I want to add a brief word about the former.

After listing a number of reasons why he thinks the travel ban case was an easy win for the government, Justice Thomas pens a little essay lamenting the spread of nationwide, or as he calls them, "universal," injunctions. His basic gripe is that relief going beyond the parties to a case cannot be squared with the traditional equity powers of courts.

Justice Thomas's position is, not to put too fine a point on it, ridiculous. He says that "[n]o persuasive defense has yet been offered for the practice." How about conservation of judicial resources and the resources of litigants? At least once a court with the power to set a precedent enjoins enforcement of a law in one case, there is no reason to require that people who are similarly situated to the prevailing parties in the first case to bring their own lawsuits one at a time to vindicate their rights.

Because Justice Thomas's objection is antiquarian, he completely misses the real objection to universal injunctions: When issued by a district court, they unfairly load the dice in favor of the plaintiffs.

Consider that: (1) A district court ruling only binds parties as a matter of res judicata and has no precedential effect; (2) thus, if the government wins in its defense of a law in case 1 brought by plaintiff A, it can still lose in case 2 brought by plaintiff B, or case 3 brought by plaintiff C, etc.; (3) hence, if the challengers to a law win just one case, they can obtain a universal injunction, while the government must prevail in every case in order to be able to enforce its law.

That's a real problem, but because Justice Thomas doesn't identify it, he also doesn't identify the possible solutions. To my mind, there are at least three possible solutions. One would be to interpret Federal Rule of Civil Procedure 23 more generously to allow certification of a mandatory class action in cases in which a universal injunction is sought. That way, the stakes are the same for both the challengers and the government.

A second possibility is to achieve consolidation through the multi-district litigation (MDL) process already in place for duplicative litigation. Either of these first two approaches would achieve consolidation, which would address the basic unfairness to the government of having to play whack-a-mole in these cases.

A third possibility would be for the Supreme Court to expedite review in cases in which universal injunctions are granted. That would have two benefits. First, it would ensure consolidation quickly in a court that has authority to resolve legal issues as a matter of precedent for the nation. Second, it would lead district judges to hesitate before granting universal injunctions for fear of inviting reversal by the Supreme Court.

If the full Court some day takes up Justice Thomas's invitation to consider the propriety of universal injunctions, one hopes that most of his colleagues will focus on the actual reasons for being concerned about them, rather than worrying that we have come too far from the practice of 18th century English courts.


Update Postscript: Judge Sabraw's order establishing a timetable for reunification of families and barring further separations at the border is accompanied by an order certifying the case as a nationwide plaintiff class action.