Nationwide Injunctions After CASA

Diego Zambrano: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Diego Zambrano. Please subscribe or follow this feed on your favorite podcast app. Welcome to a live recording of the show.

So, presidents from both parties wield their power through the pen, with executive orders, often driving massive shifts in policy. Since taking office, President Trump has issued over 200 executive orders on a wide range of issues. One particularly controversial order, issued on day one of the new administration, attempts to significantly narrow the meaning of birthright citizenship.

After multiple lower courts immediately blocked the birthright citizenship order from being implemented, the Trump administration swiftly appealed to the Supreme Court. And in Trump v. CASA, the court left the issue of birthright citizenship for another day. Instead, the Supreme Court weighed in on a critical legal question: Can federal courts issue a universal injunction that constrains the government from acting against individuals or entities beyond those who brought the lawsuit? Ultimately, in a 6-3 decision, the court reined in the power of lower courts to issue universal injunctions but did not completely abolish it.

This ruling is now having a complex and potentially large impact on the ongoing wave of legal challenges to Trump administration policies. To help us better understand CASA, we welcome our guests for this special live recording, Stanford Law Professor Mila Sohoni, an expert in civil procedure, administrative law, federal courts, and legislation. Her work has been cited by the Supreme Court and in many different separate opinions penned by Justice Sonia Sotomayor, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson, and she has written extensively about the CASA case and its broader implications.

Welcome everyone. Mila, I want to start by just asking you: what’s so controversial about nationwide injunctions and is it something that has changed recently? Do you think there’s much ado about nothing here? Tell us about that.

Mila Sohoni: Yes, sure. Universal injunctions have become controversial mainly because they let a single federal district judge anywhere in the country completely stop a president’s policy for everyone, not just for the people who sued. So this creates an extraordinary dynamic. Imagine a district court judge in Amarillo, Texas blocking a nationwide vaccine mandate policy, or imagine a judge in San Francisco halting a Trump immigration order across all 50 states and for everyone.

What critics say is that this turns federal district court judges into effective super-legislators who can veto executive branch action based on their own political views, especially because lawyers can shop around for friendly judges and friendly districts. The controversy about these orders has 100% intensified in recent years, but the remedy itself isn’t new. In my scholarship, I’ve documented federal courts issuing broad injunctions that resemble these in principle since at least 1913. What has changed is the sheer volume of them. As presidential administrations, faced with gridlocked Congresses, have been implementing more and more policy measures through executive branch fiat, nationwide injunctions have increased in number and they have increased in consequence, and they therefore have increased in controversy. During the Obama and the Biden years, Republican attorneys general figured out that they could file in friendly Texas courts and shut down those presidents’ policies nationwide.

And then during Trump’s first term, and today, Democratic attorneys general perfected the same strategy in California and in district courts in the First Circuit nowadays. So we went from perhaps small number per year to dozens of such injunctions over the course of a single presidential term.

I do not think this is much ado about nothing. When any federal judge can block an executive action as to everyone, it shifts power to the judiciary—that has to be acknowledged. Is that a feature or a bug? The birthright citizenship case that you mentioned perfectly illustrates the stakes. Without universal injunctions, hundreds of thousands of newborns were at risk of losing citizenship while their parents tried to find lawyers and file individual lawsuits. With universal injunctions, several district court judges were able to stop the president from implementing what he regarded as a valid policy. So, this is a fundamental question about who is running the country and how quickly and effectively courts can check executive power.

Diego Zambrano: I’m glad you mentioned that. A lot of this may be just a reaction to executive power. Lots of critics say, how can courts arrogate this kind of power, really stop these presidential policies? But there’s a counter argument of look, they’re reacting to the executive increasingly governing through these kinds of broad executive orders or agency programs.

And so just to continue—before we get into the case—to talk about larger questions: what do you think are the best arguments for nationwide injunctions, or at least for the courts having the power to issue nationwide injunctions?

Mila Sohoni: Yes, so the best case for these injunctions rests on three practical imperatives.

First of all, district courts have to be able to respond to emergency situations when administrations suddenly impose policies that drastically affect millions of people’s rights. The Supreme Court cannot handle every crisis immediately. So when an executive branch starts deporting people to a prison in El Salvador without due process, or when it begins requiring that employees be vaccinated against COVID, lower courts have to be the frontline responders to those measures.

The second reason is that many victims of illegal government action cannot realistically sue to protect themselves. Many people have no meaningful opportunity to join in a lawsuit for themselves, either because they’re afraid of reprisal or because they simply lack access to justice, right? So, an undocumented immigrant is who’s facing deportation, is going to be very worried about suing the Trump administration or the Biden administration in their own name.

Poor families who are losing food stamps cannot just call up the attorney that they have on retainer and ask them to sue. Workers may fear employee retaliation if they sue. So universal injunctions protect vulnerable populations who lack a meaningful way to access justice, which is a core value of our legal system.

And third, courts need to have the remedial arsenal to address government power, and that remedial arsenal has to be commensurate with the way that government actually works. Once somebody is deported, or once a census is conducted with an illegal question, or once millions of loans are forgiven, courts cannot easily undo those kinds of actions down the road, right?

In other cases, the only workable remedy is going to be a universal remedy. So having an EPA emissions standard that applies to some factories and not their identical competitors doesn’t really make sense. And a ruling that protected only, say, the plaintiff state of New Jersey from some federal regulation or some restriction, doesn’t really make sense either, because people can just move to the state of New Jersey.

Diego Zambrano: Yes, so maybe a couple of the arguments there. One is rights protection, the other one’s checking executive power. To me, the most intuitive one is that what you have here is a plaintiff is suing the government, and the court is saying that the government probably violated the law here. The government doesn’t have the power to do this, and so what should the court say at that point?

And it seems natural to say that the court can order the government to stop the legal action. Just stop. And that has an effect on everyone. It’s actually seems artificial for the court to say “no stop but only as to the party that filed the lawsuit. Continue violating the other 330 million people’s legal right.”

Mila Sohoni: Yeah. This is what the scholar Douglas Laycock called “the simplest use of the injunction—halt this illegal act.” And that’s just one very simple way to understand what a universal, or a nationwide, injunction is. The court has jurisdiction over the government defendant, it has subject matter jurisdiction over the case, and it’s just issuing an order that says stop breaking the law.

Diego Zambrano: Okay, good. But now I want to push on the counter argument. There’s long been this dispute about whether courts are supposed to say what the law is or whether they’re just supposed to resolve the dispute in front of them.

And many critics, scholars, lawyers, judges have long affirmed that the courts’ only role is to resolve the dispute in front of them. So, it is not actually to do anything with regards to anyone else. And if you follow that thread, the court order should say, “Stop implementing this program or engaging in this act with regards to the plaintiff only.” That’s all that the court is supposed to do. And there are many critics who point out that if you have a combination of forum shopping, where litigants are picking the courts and judges that are more likely to be friendly to them, and increasing polarization where you can find the judge that is very political and likely to be friendly to your particular case, then it’s easy to cherry pick and find the judge that will quickly stop a presidential program.

So you can’t have high polarization forum shopping and nationwide injunctions because they will lead to a recipe for inaction. Government won’t be able to do anything. That’s one argument. Another is that we have lots of other tools in the system, including class actions, and we’re going to talk about that later, that are meant to do this kind of thing—to allow a big, large group of people to file a case, and this national injunction is an end run around those other tools. There’s also a maybe what we should call an epistemic argument, that the best way for the judiciary to operate is to slow down, let issues percolate, let multiple courts deal with an issue, and then let appeals rise up and eventually you get a Supreme Court decision or a circuit court decision on an issue. And that when you have this nationwide injunction, you’re short circuiting all of that, kind of destroying the way that the judiciary operates. And maybe just finally, it’s implicit in the other arguments: this is anti-democratic, the president has been elected, the president is announcing a new program or the implementation of a statute, and a single court judge is stopping that action nationwide. So those are the arguments against it, and I don’t know if you have any reactions to that?

Mila Sohoni: Yeah, so I do want to acknowledge that these are serious costs, right? These injunctions do let litigants avoid the rigors of class action certification. They do depress, to a certain extent, dialogue. They do result in decisions issuing on thinner records than we would have after a full trial. But the thing is that if they were ditched entirely, that would have really severe costs too.

And I just want to start with the last point you mentioned, just the democracy point. If a president is juicing regulatory authority out of a statute that doesn’t exist or juicing legal authority out of a statute that is in violation of the Constitution, what the court is doing is reimposing democratic checks on the president by blocking that action from going into effect. That is what democracy is: reenforcing what the meaning of the Constitution is, applying statutory constraints. That is the democratic argument there—that these injunctions are actually democracy-furthering. If you didn’t have them, you would have much more of a regulatory patchwork problem. You would have dis-uniformity across jurisdictions, and you would still have forum shopping because individual plaintiffs and individual states would be incentivized to choose particular favorable forums as well. On top of that, you would have many lawsuits, or many more lawsuits, than you have currently.

So instead of just having one or two or three rushed, and duplicative lawsuits, you might get dozens. And then fundamentally behind it all, who’s going to make people whole, if ultimately the action is held unlawful? It is very hard to unspill the milk in many of these cases.

Diego Zambrano: So you’re pointing out there are democratic arguments on both sides and I think that’s right. I might say, just a rule of law point, that this is actually constraining the executive power if they’re engaging in illegal act, and so you need the judiciary to have a tool like this. But now I want to move on to the actual Supreme Court case that brought this issue to the table this year.

That’s Trump v. CASA. I mentioned, this had to do with a birthright citizenship order. The Trump administration issued this order purporting to limit birthright citizenship. And then this decision that came out in June didn’t focus on the issue of birthright citizenship. Instead, it focused on this apparently unrelated issue of a nationwide injunction.

Maybe just start there. How did that happen? How is it that the Court was supposed to address whether the birthright citizenship order was lawful, and then it ended up addressing the question of a nationwide injunction?

Mila Sohoni: Yes, this was a day-one executive order on the first day of Trump’s second term, and this executive order purported to end birthright citizenship for children whose parents lack either citizenship or green card holder status. Now this order was pretty much immediately enjoined by three different district court judges, and I’ll just note that those judges were not all nominated by Democratic presidents. The Trump administration then filed these emergency applications with the Supreme Court on what you might have heard about, on the shadow docket.

And the Supreme Court then issued an order saying, we want to hear oral argument, we want more briefing on this. And then it addressed the only question that the government raised in its stay application, and that was the question of whether the injunction should be narrowed so that they would protect only the plaintiffs rather than all those affected by this executive order.

So, the court was not asked to, and it ultimately did not say a word about the illegality or legality of the executive order itself. Instead, when it issued its decision in June, it only addressed the issue of the scope of the injunctions, and it stayed them to the extent that they provided relief beyond the plaintiffs in the case.

Diego Zambrano: Okay, we’re going to talk about the emergency docket in a second. But just to try to understand what the court said in this case … and keep in mind, the court’s decision is not about whether it’s a good idea or not to have a nationwide injunction. It explicitly … the majority says it’s not about that. It’s about whether the judiciary has the power to do this, whether it is lawful to do this. So maybe tell us about the Court’s holding based on that.

Mila Sohoni: Yes, so the Court announced in this case, in Trump v. CASA, that federal courts generally lack the authority under the Judiciary Act of 1789, to issue injunctions that protect nonparties, but they left a significant qualification to that. Courts can still issue broad relief, when it’s necessary, to provide complete relief to the actual plaintiffs. And then the Court sent the cases back down to the lower courts to figure out whether the states and the organizations might still need universal relief for their own injuries. For instance, it’s possible that the states wouldn’t be able to get complete relief without a universal injunction because of the possibility of interstate movement of people that would create administrative chaos. And so, if that were the case, if the lower courts found that, then the states might still be entitled to as sweeping of an injunction as had previously been issued. And, as Diego mentioned, the Court totally set aside as irrelevant … It just said we refuse to consider the policy arguments in either direction, they just treated the policy arguments as beside the point.

Diego Zambrano: So a lot of  … you mentioned this: a lot of the Court’s decision is about the history….

Mila Sohoni: Yes.

Diego Zambrano: And that’s because this power to issue an injunction like this has to be grounded in the 1789 Judiciary Act, right? And so then the question is how do we interpret that particular statute? So the court has done this in many cases, look into the history and tradition, but here it makes sense to look at the history given that this is where the power to issue the injunction comes from. And how do you think the Court approached this question of history and … I think you’re a critic of it, so maybe give us your criticism.

Mila Sohoni: Yes, so I do have a dog in this fight. I have written about this history a lot. So, CASA looks back at the history of this statute, the Judiciary Act of 1789. In my view, it performed a very selective and truncated historical analysis. So it claimed to be interpreting the Judiciary Act through historical lens, but its historical analysis was actually surprisingly very thin.

The majority barely examined American equity practice at the founding. There’s essentially no citation to any founding-era American law, and the treatise that it cites doesn’t even speak to this question. Instead, what the Court does is it looks at history after the founding and picks out particular sources from that history.

So the court cites cases from the 1890s. It cites one as late as 1927 to argue against universal injunctions, but it conspicuously ignores other cases from the 20th century where the Supreme Court itself issued or affirmed exactly these kinds of broad injunctions. In my scholarship I’ve shown how federal courts issued injunctions that protected nonplaintiffs from at least 1913 onwards, including the Supreme Court blocking a new federal statute that affected newspapers for everyone, not just against the plaintiffs. Other famous examples that you might remember from law school include Pierce v. Society of Sisters or or Barnett v. West Virginia, but the Court just simply didn’t engage with that history, treating it as being beyond the window of relevant time. There are other criticisms I have of the Court’s use of history, but they get a little more into the weeds.

Diego Zambrano: A lot of it is about disputes about the history. Ultimately, both sides disagree about what kinds of remedies were available at in the founding era. And that’s because in a previous case called Grupo Mexicano, the Supreme Court has said the federal courts only have the kinds of equity remedies that they had in the founding era, or at least you need an antecedent, you need an analogous remedy that was available in 1789. So then a lot of the debate is: what kinds of remedies were available in 1789 or not?

The Court reads the history a certain way. Mila and others read it a different way, and so there’s a heated disagreement about how to read that history. And then we move on to other reasons … the Court purported to also reject any policy reasons for the way he decided this. But do you think it resolved any policy problems by ruling that, “no, actually, courts don’t have this power?”

Mila Sohoni: Not really, because what the court did is not eliminate policy problems just so much as reshuffle them into different containers. Take forum shopping. Throughout this discussion, we’ve talked about how that is a main policy problem with people seeking and obtaining these injunctions.

And recall that CASA said that you can still issue a broad injunction if that broad injunction is necessary to provide complete relief to the plaintiffs. CASA also said that that it wasn’t touching the power of federal courts to issue what is called universal vacatur, which is the setting aside or halting of a federal rule based on a statute called the Administrative Procedure Act. CASA also did not question the courts’ power to certify nationwide class actions, which produce decrees that are essentially identical in their consequences to the universal injunction. So. Think of what your incentives would be if you were a litigator after CASA.

If you’re a plaintiff, you’re still going to forum shop, you’re just going to be form shopping for one of these other leftover remedies. You’re going to be seeking a judge who will find that complete relief requires universal scope. You’re going to be searching for a judge who’s going to quickly certify a nationwide class. You’re going to be searching for a judge who’s going to interpret the APA to allow for universal vacatur. So you’re just doing the same thing with and with slight … under different labels or through different pathways. And we could walk through all of the other policy problems that people have asserted to exist with universal injunctions: conflicting injunctions, speedy litigation, lack of percolation, et cetera.

All of those things can just be recreated now that CASA has been decided. On top of that, I actually think that CASA creates some new problems. Courts are now charged with engaging in this inquiry as to what makes relief complete. Courts now have to grapple with what sort of remedies are indivisible in the location that’s used in these debates, and they don’t have very clear guidance on that.

The CASA Court itself did not really describe very lucidly what makes relief complete or what makes less-than-universal relief infeasible, which is another important inquiry. And so that also is going to cause some issues going down the line.

Diego Zambrano: So, it seems like you’re saying this is going have less of an effect than one might think because we still have a lot of alternatives, a lot of ways in which plaintiffs can file lawsuits that try to get broad remedies, almost like the national injunction, right? You have class actions, which can represent hundreds of thousands of people. You have claims by states. So the State Attorney General can file a lawsuit and get relief across the state, perhaps in some cases. And then this question of complete relief—litigants are going to try to say, look, we need a broader injunction, almost like a national injunction, because it’s necessary for complete relief. And so do you actually feel like these are going to be taking up most of what national injunctions took up?

Mila Sohoni: Yes, so we … it is it’s something that I’m tracking very closely. It’s still early days, but I think so far there has been a lot of substitution, I think that has occurred. But we have to keep watching this because it’s only been a few months since CASA was actually decided.

Diego Zambrano: I want to talk about the relationship between lower courts and the Supreme Court. And that’s been a major theme of the last year because the Supreme Court has, in so many cases, intervened through its emergency docket, its shadow docket, to stay lower court decisions. And I want to understand that.

Before that, do you have any takes on why the Court did this now? Why do you think the Court decided this case this summer when this issue has been percolating, so to speak, for the last decade?

Mila Sohoni: Yes. It has been percolating for a while and as late as 2017 in Trump v. IRAP, which was one of the first challenges to the first Trump administration’s Muslim ban.

The Supreme Court itself allowed for injunctions to remain in place that protected not just the plaintiffs, but those similarly situated to the plaintiffs. So as late as 2017, the Court itself was allowing non-plaintiff protective relief to remain in effect, even though that relief wasn’t necessary to provide complete relief to the plaintiffs.

But it is true that in recent years, the court has had a number of opportunities to address the universal injunctions question, but a lot of them have come tied to challenges to administrative rules. So they’ve had this … they’ve also included this question about what the Administrative Procedure Act allows and I think that might have impeded the desire of the Court to take up the question because the justices may not be in as much agreement on that question as they appeared to have been on the question of the universal injunction simpliciter—the raw universal injunction stripped of any a APA garb.

So ultimately then the Court chose to decide the issue in this case. And I have to say that I am glad that it was this case that the court chose to address the question in the sense that I think that this case really did make stark the very severe potential consequences of not having an ability to give broad remedies, right? Because this case is about birthright citizenship, because birthright citizenship is … and because citizenship is so fundamentally important, because the executive branch’s action here is so far out of line with previous precedent and executive branch practice. For all of those reasons, I think that the stakes were crisply presented here in a way that must have brought home to the Court how important its decision would be. And I’m glad that it was … I’m glad that it considered this question in this context rather than in the context of some super- boring rule that regulates financial institutions or like smokestacks or something.

Diego Zambrano: Yes. And you’re basically focusing on the merits of the case and the stakes of the case, the implications of the case. I think there’s a larger question about how the Court is reacting to the Trump administration, and lots of critics have said why didn’t the Court do this during the Biden administration, right? Why didn’t they limit the lower courts order? My question is more: why didn’t they do this a year from now? Given that it is disarming lower federal courts dramatically in a very heated time, but maybe the Court felt no, it was important to disarm federal courts because it was actually taking legitimacy away from the courts to be seen to clash with the president so much.

Now what about the question of the relationship between the Supreme Court and the lower courts?

Mila Sohoni: Yes, this is … around this question in particular what I’m observing is that what the lower courts are doing is their best. They’re doing their best to apply CASA. And the thing that’s happening now is that when lower courts are issuing broad remedies through some of these other preserved pathways — when they are certifying classes, when they are finding that complete relief requires universal scope, what they’re often encountering is the criticism from the administration that they are circumventing CASA, that they’re evading CASA, that they’re flouting CASA, even though what these lower courts are doing are coloring within the lines that were drawn by CASA. So I think this is a problematic situation. It is both essential and totally commonplace for lower courts to have to work with and apply a difficult and open-textured supreme court opinion to different factual and legal contexts.

If they get accused of insubordination, if they get accused of defiance every time they reach a disliked remedy, they may hesitate to do even though those broad remedies are justified. So one thing that I’m … one ironic thing about CASA is that it was meant to reduce, as you were just alluding to, it was meant to reduce friction between the courts and the executive branch, but it may have augmented those frictions and it may also have created new sources of tension for intra-branch dialogue, meaning dialogue between the lower courts and the Supreme Court. So that’s something that I feel concerned about.

Diego Zambrano: I think we’re out of time, so we’re going to stop there to take questions. It’s a question over here.

Q1: It seems like the problem is with the executive orders. What is the root, the legal justification for executive orders and so many executive orders over this period of time?

Mila Sohoni: I haven’t updated my numbers, but the last time I checked this administration was issuing executive orders at something like 10 times the rate of even the last Trump administration. So in a situation like that, where you have a lot of executive orders coming out, and they are not being vetted through the ordinary legal channels, as I think is also the case, it really isn’t surprising that there’s going to be a lot of courts issuing a lot of injunctions against those executive orders.

Diego Zambrano: I think the number of executive orders explains why there are so many national injunctions, but it doesn’t tell you whether it’s appropriate to have any of them at all …

Mila Sohoni: …  any executive orders at all.

Diego Zambrano: Right. Well, either one, but you would still have a problem even if there were a handful of national injunctions, because these are signature policies by presidents, by the Biden administration, by the Obama administration, by the Trump administration. And there would still be the question of is that appropriate? And there’s this tricky issue of if the president is engaging in unlawful acts, does the judiciary have to declare that what the president is doing is unlawful? And unfortunately, there’s a lot of precedent for the idea that no, that courts cannot remedy every unlawful act.

It is not the role of the court to …  it cannot invent powers to remedy when the executive is violating the law. And there was a heated disagreement in this case between the majority and the dissent above that. The dissent seems to be saying that, actually, if the executive is violating the law, it is the role of the judiciary to say that and to declare it. And the majority is saying “that’s not how the judiciary operates. We have a lot of limits. Congress tells us what powers we have, and sometimes we don’t have the power. There will be illegal actions that we cannot remedy.” And that’s hard, I think for non-lawyers to understand. Or even for any concept of the rule of law.

Mila Sohoni: Can I just chime in on that? So certainly there are certain areas or doctrines that block the ability of courts to give remedies for violations of rights. And you may have heard of the Political Questions Doctrine, you may have heard of the Doctrine of Sovereign Immunity—both of these doctrines create situations where courts cannot actually give remedies, even if everybody believes, or even if everybody agrees that there is some violation that’s ongoing. However, I think it’s important to distinguish that context from the situation where courts do have the power, but the power is being argued over. And I think that’s what this is. And I don’t think that the dissent was saying—and I think you’re referring to Justice Jackson’s dissent–that I don’t think Justice Jackson’s dissent was saying courts can just freelance whatever authority they need to make the world a better place.

Rather both Justice Sotomayer and Justice Jackson were saying what’s happening here is a judgment call about how firmly rooted in our history this remedy is. It’s firmly rooted enough and getting rid of this remedy from the judicial toolkit is a very serious thing and it ought to not be done. There’s authority here, and that authority sometimes is validly and properly called into use. That’s what’s been happening and the Supreme Court should not restrictively read the powers of a court in equity, which have always been associated with flexibility and the capacity to adapt in a restrictive fashion.

Q2: What I’ve found a little stunning about what we’ve seen in the courts in the last nine months and in particular, coming from the Supreme Court, is this insistence that judicial review is not appropriate. That this idea that the lower courts are exercising an authority that they don’t have in exercising judicial authority strikes me as insane. And there’s a clear process by which if you disagree with the outcomes in a court, that it then goes through additional judicial review through the … from district to circuit to the Supreme Court. The Supreme Court exercises its authority and issues a reasoned opinion, so you can follow that reasoning.

And yet what we have seen is none of that. And then we have a Supreme Court that’s lecturing lower courts about exercising judicial authority. Can you explain to me why any of that makes sense?

Mila Sohoni: I can’t totally explain it, but I will say that I think one thing that the Supreme Court has been engaging in here is a kind of procedural triage. Like it’s been taking cases that have been coming to it through the district courts, and it’s been saying “no, you can’t do this through the Administrative Procedure Act. You have to do it through this other court called the Court of Federal Claims.” And guess what? The Court of Federal Claims can’t issue injunctions. So go ahead and decide this case in the court of Federal Claims. Or you can’t do this to the Administrative Procedure Act, you’ve gotta go seek habeas and and seeking habeas is its own thing. And I think doing this in order to stem the tide of some of these lawsuits coming up to it quickly. And then the other question, and perhaps Diego, you have some thoughts on this, is: what should be the rules for the Supreme Court when it’s having to deal with these emergency applications? And the justices have been debating this back and forth and certainly they have not come to rest on how much detail is necessary, on how much instruction is necessary when they intervene to block lower court orders. But I don’t know that there’s going to be a perfect solution for that that lends itself to articulation and crisp rules because the emergency docket is, as it is currently, is very variable and it has a lot of different buckets of cases on it, and I’m not sure whether all can be decided according to the regular order.

Q2: But I guess what I would suggest is that this idea of an emergency has been dramatically altered. And the Court is calling things “emergencies” that are by no means emergencies in order to circumvent the natural process. And that strikes me as the biggest problem with this docket at the current moment.

Mila Sohoni: Yes. And I just want to point out that the emergency docket is not the Court’s own term for this docket, that is the term that others have given it. But just because the Supreme Court uses this power, it doesn’t mean that it itself is acknowledging that what happened below is an emergency, or that the lower court’s order is creating an emergency.

Diego Zambrano: I would just say: I think it is appropriate for justices to worry that the judiciary is seen as an adversary of the president. I think justices can be appropriately concerned about that. “We should not be seen, we don’t want to be playing the political game. That is not our role.” And they might think to the extent that we can limit or constrain our involvement in what are clearly political … politically charged questions, we want to do that. Because the way the judicial process works, it is a careful deliberation where issues percolate. Now, this is actually contrary to the intervention in the emergency docket, right? You could actually say yes, but you intervening in the emergency docket goes against that.

But I would say it seems to me quite appropriate, and this is true in many courts around the world. To try to shy away from being seen as the main antagonist of a recently elected president, every court around the world wants to be out of the spotlight when that happens. However, it may be inevitable, right? If the president’s engaged in illegal acts, and I think your view is the Anglo-American view, that the rule of law means courts, specifically, putting checks on power. And so I understand both impulses without weighing in necessarily about the emergency docket question, but I think there’s a legitimate fear, as I said, of being in the spotlight of the political debates.

Q3: Thank you for this discussion. It’s really interesting. I am troubled, not surprised, but troubled, to hear that in the CASA decision, the originalism was cherry picked. I know that this has happened in other court decisions as well. And even in sometimes denials of petitions for cert by certain justices in other areas of law. And this is something that troubles me a lot because there are a lot of people who like this concept of originalism. I think it sounds sexy to lay people, and I just wanted to hear what your thoughts are in terms of … were the dissenters in the CASA case, did they talk about the cherry picking and what can be done to teach people more about that this is happening?

Diego Zambrano: I’ll just start by clarifying and then Mila can give you more on the arguments on the history, that this wasn’t a case of constitutional originalism because the question was the meaning of a particular statute, the 1789 Judiciary Act. And so the question is: do federal courts have this power? We have to trace that power to this original statute that Congress passed giving the courts equity power. There were alternative arguments about inherent power, but those didn’t go anywhere. And then how do we interpret the statute of 1789? You could call that kind of equity originalism because the Court in a previous case  … Group Mexicano might have been in the ’90s though ….

Mila Sohoni: I think so.

Diego Zambrano: In a previous case, a long time ago had said, the way we’re going to interpret the 1789 Judiciary Act and equitable power is by looking at whether the same remedies were available then. You could still call that a kind of originalism. I agree with you, but I just wanted to clarify that. Statutory versus constitutional.

Mila Sohoni: Yes, and I think that also, though the court resolved the question on statutory grounds, that wasn’t really how it was being argued. The government kind of conceded in oral argument, “yeah, sure, you could do this on the statute, you don’t have to talk about Article III,” but the arguments throughout had been Article III originalist arguments, and so the court instead crossed that Article III wrote in the Judiciary Act of 1789.

And I’m glad that it did that because then it makes the holding itself more limited, but it has that same originalist-ish flavor. I totally agree that the Court’s application of originalism has been selective and impartial. Specifically, I think it’s interesting that in the whole domain of civil procedure writ large, there isn’t there isn’t as much originalism as there is in more politically contested domains.

I actually wrote a whole article about this, if you’re interested, called “The Puzzle of Procedural Originalism,” and it’s all about how it’s puzzling that there isn’t very much procedural originalism and what that might suggest for the balance of the Supreme Court’s originalist agenda. In one thing that really got under my skin here was the way that the Court treated the plaintiff protective injunction against enforcement of a law.

So there is a case called Ex Parte Young, which you might remember from your Federal Courts class, where the Court in 1908 recognized the authority of a federal court to enjoin government officers from filing suit to enforce a law against just a single plaintiff. So notice the date of that case and how late it was.

The Court has no problem with … it did not reject the Ex Parte Young injunction. It is okay in CASA, the Court is okay in CASA with the plaintiff protective injunction. But it what it doesn’t like, what the court doesn’t accept, is the validity of injunctions that reach beyond the plaintiffs, which developed within just a few years of the Ex Parte Young injunction.

So to me that was the most startling discrepancy. The Court has a footnote where it talks about why it regards Ex Parte Young as acceptable, that footnote has problems of its own, but that’s probably for another podcast.

Q3: How do you think judicial activism plays into all of this?

Mila Sohoni: Yes, judicial activism…the way that I see it is it’s a phrase that people use when what they want to say “ I don’t like what that court did,” and so I myself don’t use that phrase because if I want to say that I don’t like what a court did, I say: I don’t like what that court did, and this is why.

And I would encourage you to do the same.

Diego Zambrano: Alright, thank you all. Appreciate it. This is Stanford Legal.

If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps new listeners to discover us. I’m Diego Zambrano. See you next time.