Injunctions in which a court nixes an executive action across all 50 states are increasingly common. Under President George W. Bush, only six were issued. Under President Donald Trump, judges handed down an astonishing 64, and 59 of those were from judges appointed by Democratic presidents. So far, President Biden has gotten the nationwide injunction treatment 14 times, always from Republican-appointed judges, with many more of his rules unwound using a similar mechanism known as vacatur.
Most alarming, these decisions have been concentrated in particular districts: in Texas for conservative wins and in California for liberal ones. Sensitive matters are sometimes even funneled to particular judges, most notably Judge Kacsmaryk, a former lawyer for the religious right responsible for restricting the availability of the pregnancy-termination drug mifepristone, reopening a background check loophole on gun sales, and more. Impartial justice is more likely when judges are assigned randomly to cases. This works well in geographically compact districts, but in sprawling areas such as Judge Kacsmaryk’s Northern District of Texas, it’s possible to locate a division with only one judge serving it, then file there.
The result has been the halt of progressive policies in areas from immigration to abortion rights to student loans, as well as conservative darlings such as a ban on transgender people serving in the Army or individuals from Muslim countries entering the United States. The question isn’t whether these decisions were right on the policy merits; it’s whether it ought to be possible for anyone who disagrees with a presidential directive to lodge a lawsuit in just the right place to see it argued in front of just the right judge — who ends up wielding a de facto veto on federal policy.
The issues of so-called judgemandering and nationwide injunctions are intertwined. The possibility of each makes the other more insidious: Without the near-guarantee of a sympathetic jurist, challenging an executive action could prove counterproductive — and without the possibility of forestalling a policy nationwide, even the most favorable of rulings can go only so far. So it is perhaps unsurprising that bills from Senate Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) both tackle the problem, but from different sides.
Mr. Schumer wants to codify nonbinding guidance released this spring by the Judicial Conference that would ensure the random assignment, within a district, of any lawsuit seeking to bar or mandate a state or federal policy. Mr. McConnell, who told judges around the country they could ignore the Judicial Conference’s regulation, goes after the nationwide injunction instead — by preventing district court rulings from binding anyone but the parties in the case and similar parties within the district.
There is no good defense for judgemandering. The closest thing to an argument for it is that, if cases are randomly assigned, occasionally, when a relevant case arises, a jurist will be forced to travel a substantial distance. Nationwide injunctions are more complicated but require limiting at the very least.
These judicial commands let one judge in one place determine outcomes for the entire country. Yet sometimes a nationwide injunction could be the most effective way to obtain fair and complete relief for plaintiffs — and forestall blatantly unconstitutional policy before it does irreparable damage. Think of the Muslim travel ban: The thousands affected couldn’t reasonably have all filed suit themselves or even found their way into a class action.
The best answer might be to restrict nationwide injunctions without barring them entirely. Scholars have ideas: Congress could create a presumption against them that can be overcome only if a judge finds a government official is deliberately ignoring settled law, or if a judge shows a nationwide injunction is necessary to fully remediate an injury.
Curbing judge-shopping will reduce the dangers of nationwide injunctions, and restraining nationwide injunctions will lessen the impact of judge-shopping. Those concerned about the politicization of the judiciary, no matter which side of the aisle they’re on, should be eager to address both parts of the problem.
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