During Thursday's oral arguments, Supreme Court Justice Ketanji Brown Jackson questioned Solicitor General John Sauer about universal injunctions.
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00:00So as far as I can tell, your bottom line seems to be that what you call universal injunctions give relief to non-parties without going through the necessary steps, which you identify in Rule 23.
00:17Do I have that right? I mean, is that sort of like boiled to bare essence, what you're saying?
00:23I would say there's a lot more to it, but that's one very important point.
00:25That's a key point that I want to focus in on for a moment.
00:29I guess I don't understand why you are saying that these kinds of injunctions are giving relief to non-parties.
00:39First of all, I think they can be also easily characterized as focusing only on the defendant pursuant to the court's jurisdiction, personal jurisdiction over this person relative to the subject matter jurisdiction that the court has.
00:56And the relief is telling the defendant, stop doing this thing that the court has found to be unlawful.
01:06So rather than characterizing it as a quote-unquote universal injunction, I think one could easily see that this is just about the extent to which the court can constrain a defendant over whom it has personal jurisdiction.
01:23Can it do so completely or just partially with respect to, you know, just say stop with respect to this plaintiff?
01:31Am I mischaracterizing? Like, I just, I don't understand where this idea of universal injunctions comes from in this context.
01:37I think the relevant distinction is an order that orders, in this case, the government defendant, to cease allegedly unlawful activity as to the parties who have come into court and sued,
01:46and one that says to the government defendant, cease the allegedly unlawful activity against everyone in the entire world.
01:53No, just cease it. Just stop. This thing, this executive order, I mean, we do this in the APA context all the time, right?
02:01The statute says you hold that the, you set aside the conduct, right? That it's unlawful.
02:07And we don't really parse it out and say, okay, but it's unlawful only as it applies to the plaintiff or not.
02:13So it's a very common concept for the court to enjoin a defendant from doing particular unlawful behavior.
02:21And what you're now asking us to do is to require that the court have an additional limitation in its order that says you only have to stop doing this with respect to the plaintiff.
02:34And that's the part that I don't understand.
02:36I guess, I guess, from what I can read from your papers and what you've said here, that limitation you say comes from this principle that if you don't do that, you would be somehow giving relief to non-parties.
02:50But I wonder if that's right.
02:54I mean, it seems to me that the relief is the judgment that you provide to the plaintiff that says stop doing this conduct.
03:03And you give it only to the plaintiff.
03:04That's where the limitation comes.
03:06The plaintiff is the only person who can go to court after you violate this order and enforce it.
03:13Other people are incidental beneficiaries of a court ordering you to follow the law.
03:19I mean, that's like everyone in the world.
03:20When the court says follow the law, anybody who would have been hurt by your not following the law benefits.
03:27Okay.
03:27I don't understand why that would limit the court in its ability to tell you don't do this unlawful conduct.
03:36Two responses to that.
03:38Yes.
03:38There's a lot there.
03:39Two responses to that.
03:39One is that principle that your question referred to is the holding of the court in Worth against Seldon and it's reaffirmed in Gill against Whitford, in Lewis against Casey and similar cases.
03:48It's that the authority of the federal court, whether it's viewed as arising under Article 3 or under its traditional scope of equitable authority, is to remediate the injuries to the complaining party.
04:01And then to address your question about...
04:03Can I just stop you there?
04:04I'm, as the court, remediating the injury by telling the defendant to stop doing this behavior.
04:10The plaintiff has brought a claim that this executive order is unlawful.
04:15I look at it.
04:16I litigate it.
04:17And I say, you're right.
04:19Stop doing it.
04:20You cannot enforce this order.
04:22So I don't understand why that's like outside the scope of Worth versus Seldon.
04:26If the court in that case is imposing what we've called an indivisible remedy, for example, vacator under the APA, there's a debate about what set-aside means.
04:35Assuming it means to vacate, then the remedy that Congress has provided as a condition of its delegation to the agency is if one part of the, you know, if the regulation is unlawful,
04:50then the remedy granted, which directly remediates the plaintiff's injury on that hypothetical, is an indivisible remedy that benefits others.
04:57Here, in this case, and in all the other 40 cases, we see something totally different.
05:00Yeah, I understand.
05:01It is not necessary to remediate the injuries of the plaintiff before them.
05:04That is the...
05:04I understand.
05:05Let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my view at least,
05:14into a catch-me-if-you-can kind of regime from the standpoint of the executive,
05:19where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.
05:27Justice Kagan says, let's assume, for the purpose of this, that you're wrong about the merits, that the government is not allowed to do this under the Constitution,
05:36and yet it seems to me that your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, etc.
05:49And I don't understand how that is remotely consistent with the rule of law.
05:56You know, a system...
05:57And I appreciate that you go back to English common law and the chancellery court, but they had a different system.
06:02The fact that courts back in English chancellery couldn't enjoin the king, I think, is not analogous or indicative of what courts can do in our system,
06:14where the king, quote-unquote, the executive, is supposed to be bound by the law, and the court has the power to say what the law is.
06:23And so, one would think that the court could say, this conduct is unlawful and you have to stop doing it.
06:30I think the catch-me-if-you-can problem operates in the opposite direction, where we have the government racing from jurisdiction to jurisdiction,
06:40having to sort of clear the table in order to implement a new policy.
06:43A great example of this is in the Schilling litigation, where the military had a military readiness policy.
06:49It was universally enjoined by the DDC.
06:51It went up to the D.C. Circuit.
06:53The D.C. Circuit stayed that injunction to allow that policy to go into effect, and then, one hour later, a district court on the other side of the country universally enjoined it.
07:02Can I just ask you one final thing, because this relates to also something that Justice Kagan said.
07:08I would think we'd want the system to move as quickly as possible to reach the merits of the issue,
07:14and maybe have this court decide whether or not the government is entitled to do this under the law.
07:21Wouldn't having universal injunctions actually facilitate that?
07:26It seems to me that when the government is completely enjoined from doing the thing it wants to do,
07:32it moves quickly to appeal that, to get it to the Supreme Court, and that's actually what we would want.
07:39But what I worry about, similar to what Justice Kagan points out, is that if the government is saying no lower court can completely enjoin it,
07:49it actually means that the government just keeps on doing the purportedly unlawful thing,
07:54and it delays the ability for this court to reach the underlying issue.
08:00Percolation of novel, sensitive constitutional issues is a merit of our system.
08:06It is not a bad feature of the system.
08:09Thank you, counsel.