During Thursday's oral arguments, Supreme Court Justice Amy Coney Barrett questioned Solicitor General John Sauer about universal injunctions.
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00:00General Sauer, I want to ask you about a potential tension.
00:04Well, no, not potential tension, an actual tension that I see in answers that you gave to Justice Kavanaugh and Justice Kagan.
00:09You resisted Justice Kagan when she asked you whether the government would obey within the Second Circuit a precedent.
00:17I'm distinguishing between opinions and judgments here.
00:19Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a Second Circuit precedent, say, in New York, because you might disagree with the opinion?
00:32Our general practice is to respect those precedents.
00:36But there are circumstances when it is not a categorical practice.
00:39And that is not this administration's practice or the longstanding practice of the federal government.
00:44And I'm not talking about in the Fourth Circuit.
00:45Are you going to respect a Second Circuit?
00:48And I'm talking about within the Second Circuit.
00:50And can you say, is that this administration's practice or a longstanding one?
00:53As I understand it, longstanding policy of the Department of Justice.
00:56Yes, that we generally, as it was phrased to me, generally respect Circuit President, but not necessarily in every case.
01:03And some examples might be a situation where we're litigating to try and get that Circuit President overruled and so forth.
01:09Well, OK, so I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955,
01:16and you think it's time for it to be challenged.
01:18That's not what I'm talking about.
01:19I'm talking about in this kind of situation.
01:21I'm talking about this week, the Second Circuit holds that the executive order is unconstitutional.
01:26And then what do you do the next day or the next week?
01:29Generally, we follow.
01:30So you're still saying generally?
01:31Yes.
01:32And you still think that it's generally the policy, longstanding policy of the federal government to take that approach?
01:37That is my understanding.
01:38OK, so, but it sounds to me like you accept a Cooper versus Aaron kind of situation for the Supreme Court, but not for, say, the Second Circuit.
01:48Where you would respect the opinions and the judgments of the Supreme Court, and you're saying you would respect the judgment, but not necessarily the opinion of a lower court.
01:56And again, I think in the vast majority of instances, our practice has been to respect the opinion as well, in the circuits as well.
02:02But my understanding is that has not been a categorical practice in the way respect for the precedents and the judgments of the Supreme Court has been.
02:09So you're not hedging at all with respect to the precedent of this court?
02:12That is correct.
02:12I believe the quotation from our application directly addresses that, and we stand by that completely.
02:18OK.
02:19Next question.
02:20So this is also a follow-up to some of the questions that others have asked you about the merits of the order not being before us.
02:27Did I understand your answer to be because you think percolation is really important for this one?
02:32We do think percolation is really important for this one, but the reason the merits are not before is because we've only submitted a stay application on the scope of relief question.
02:40And as Labrador against Poe indicates, the scope of relief is a separate question for them.
02:44Oh, I understand it's a separate question, but there are plenty of times that the government comes to us and asks for both.
02:50Absolutely.
02:50For example, recently in the Wilkins and Cox application, we did exactly that.
02:54And the reason why you didn't ask for both here is because you think that the merits question needs percolation.
02:59Yes, but also more fundamentally, it illustrates that the very problem with these nationwide injunctions is they force this rushed, you know, fast and furious decisions on the merits.
03:12So I think it would be very inappropriate in this case to come to a stay application saying, please give us a rushed, you know, decision on the merits of something that's very, very complex.
03:20But the government's done that in other cases too, right?
03:23Those cases would be different.
03:25In this case, the example I gave earlier, we think it's very clear cut on the merits.
03:28You know, this one is, we can see it a novel and sensitive question.
03:31So this one isn't clear cut on the merits?
03:33This one, in this case, we want the court to address the remedial issue.
03:37If we offer the merit first, that's a vehicle problem because the court has in many cases just addressed the merits and not the remedial issue.
03:42And it's imperative from the federal government's perspective that the remedial question be addressed.
03:47Okay, so last question is about why that is.
03:50Justice Alito asked you, well, what's the point of this?
03:54If the same thing could happen, which is effectively the EO being enjoined everywhere via class action or because it's necessary to provide complete relief, say, to the states,
04:05is there any difference in your view between, say, a class is certified of all individual plaintiffs and they win, and the executive order class-wide, there's a judgment saying that it can't be enforced.
04:19Do you want to say, you know, follow up, is there any practical distinction you see?
04:23Why does the government care?
04:25Is it just the rigors of the certification process or is it something more?
04:29The rigors of the certification process, keep in mind that in many of these cases, we successfully oppose class action.
04:35Let's assume, I think, you can't successfully oppose it here for individual plaintiffs.
04:38Well, I mean, that opportunity to have our day in court on that is very, very important.
04:42I understand, but let's assume, go with my assumption.
04:45Assuming that we were to lose in opposing the certification.
04:47Assume the class is certified.
04:49Is there any benefit?
04:50If a class is certified, and let's say, you know, you were pointing out that the executive order targets two different kinds of people,
04:55let's assume that it's commonality because, you know, they only target one portion of the order, right?
05:02In that circumstance, does the government get anything different?
05:07This is back to Justice Alito's question about what's it to you?
05:10What's the practical difference to you?
05:11Do you want to say anything about whether there's a practical difference between a universal injunction and a loss in the class?
05:18Absolutely.
05:19Among many others, the represented class members are bound in the class action context.
05:26And that means that if they lose, they're bound by that as well.
05:30So they're taking a grave risk, so to speak, by proceeding through a class action.
05:34And it has this symmetry where the government is bound if we lose, they are bound if we don't lose.
05:39And that's a very, very important decision.
05:41And you would respect that judgment?
05:43If it were, yes, if it were a judgment.
05:45You know, now we may try to litigate in other contexts to try and get a different judgment from a different district court.
05:51But we would be bound by that judgment, as would they.
05:53And that's the crucial point.
05:56Justice Secretary.