Universal Injunctions’ Outsize Effects May Spur Justices to Act

Last week, in Labrador v. Poe, the US Supreme Court allowed Idaho’s ban on gender-transition care for minors to take effect—but the justices said practically nothing about transgender rights. The word “transgender” appears only once throughout 34 pages of opinions.

Instead, the opinions—a concurrence by Justice Neil Gorsuch, a concurrence by Justice Brett Kavanaugh, and a dissent by Justice Ketanji Brown Jackson—focused on a fascinating issue that legal nerds have been buzzing about for years: so-called “universal” injunctions. There’s been a dramatic uptick of these in the courts. They picked up speed during the Trump administration and continued into the Biden administration.

Gorsuch noted in Labrador that during the Obama administration, lower courts issued only around 19 universal injunctions against the federal government, over the course of eight years. But in the first three years of the Trump administration, according to Gorsuch, lower courts issued 55 universal injunctions—“[a]nd if the last 12 months are any indication, it seems that trend has continued apace during the [Biden administration].”

The trend is hugely important. Imagine a law is passed or a regulation is issued that might be unconstitutional or otherwise contrary to federal law. A plaintiff sues to stop the law or regulation from taking effect. But lawsuits, especially complex cases involving complicated constitutional issues, can take years to resolve. While the legal battle plays out, can the law be enforced—potentially against millions of Americans?

It’s a critical question—and the answer increasingly turns on universal injunctions. In recent years, battles over these injunctions and other forms of nationwide relief have decided the fate of laws and regulations addressing such divisive subjects as abortion, immigration, transgender rights, vaccine mandates, and more.

Sometimes universal injunctions have blocked conservative policies, as they did during the Trump years. And sometimes they have blocked liberal or progressive policies, as they’re doing now under President Joe Biden.

Regardless of your politics, you should understand how nationwide injunctions work and why they’re so controversial. Hence this quick primer—which you can also think of as a preview, since this issue is definitely returning to the Supreme Court.

What Is a Universal Injunction?

An injunction is, according to Black’s Law Dictionary, “a writ or order requiring a person to refrain from a particular act.” Injunctions typically apply only to the specific parties to a case. But here, as explained in Gorsuch’s Labrador concurrence, “the district court went much further,” preventing Idaho “from enforcing any aspect of its duly enacted law against anyone”—not just the two children who filed this case, but the entire universe of potentially affected minors—hence the term “universal injunction.”

Who Can Issue Them?

A single federal district judge can issue a universal injunction, blocking a policy from taking effect across an entire state or even the entire country. It gives individual judges a vast amount of power, which should trouble anyone concerned about judicial overreach. And it has unsurprisingly led to “judge shopping,” with plaintiffs intentionally filing lawsuits in specific federal district courts—or even subdivisions of courts called “divisions”—to increase their chances of getting a favorable judge.

Take Judge Matthew Kacsmaryk. As the only judge in the Amarillo Division of the Northern District of Texas, the conservative Trump appointee is pretty much guaranteed to get any case filed in his courthouse. Conservative plaintiffs have flocked to Kacsmaryk’s courtroom, where he has ruled against the Biden administration in cases involving immigration, reproductive rights, LGBTQ rights, and the abortion drug mifepristone. (As a technical matter, Kacsmaryk “set aside” the FDA’s action under the Administrative Procedure Act, rather than enjoining the FDA—but as a practical matter, his order amounted to a universal injunction.)

Can They Be Appealed?

Yes—and they frequently are appealed in high-profile cases involving hot-button issues, like Labrador. They go first to the circuit courts and then to the Supreme Court, which reviews these injunctions as part of its “emergency docket,” also known as the “shadow docket.”

Is There a Legal Problem?

They might be unconstitutional. According to Samuel Bray, a leading scholar (and critic) of universal injunctions, “Article III [of the Constitution] offers a concept of the judicial power that is defined by the dispute—a judicial resolution of a case or controversy brought by parties.” So only the specific parties before a court are entitled to relief—not random people elsewhere in the state or country.

Or as Gorsuch argued in Labrador, “a federal court may not issue an equitable remedy”—here, an injunction—that is “more burdensome to the defendant than necessary to [redress]’ the plaintiff’s injuries.” So in Labrador, according to Gorsuch, the judge could have blocked Idaho from enforcing its law against the two children who brought suit, but nobody else.

Any Policy Problems With Universal Injunctions?

Bray identifies at least four: they encourage forum-and judge-shopping, they preempt “percolation” of legal issues through the lower courts, they give rise to conflicting national injunctions, and they serve as an end-run around the class action.

What’s the Case in Favor of Universal Injunctions?

In the words of Professor Noah Feldman, “in our era of polarized politics, sometimes the laws in question are unconstitutional.” And in such cases, “it seems unconscionable for that law to stay in force while the country waits for the courts to finish the process of overturning it.”

What Does the Future Hold?

“This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions,” Bray wrote—which strikes me as significant.

At least five justices would probably be sympathetic to a challenge to universal injunctions: Gorsuch, who wrote critically about them in Labrador; Justices Clarence Thomas and Samuel Alito, who joined the Gorsuch concurrence; Justice Brett Kavanaugh, who wrote a nuanced concurrence, but acknowledged that “prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law”; and Justice Amy Coney Barrett, who joined the Kavanaugh concurrence. (The three liberal justices dissented in Labrador—but even Justice Ketanji Brown Jackson, in a dissent joined by Justice Sonia Sotomayor, wrote that she “share[s] the concern that courts heed the limits of their power.”)

Congress has been wrestling with the issue since at least 2020. It’s now considering dueling bills that would tackle the issue either by curtailing judge shopping, mirroring the Judicial Conference’s non-binding guidance released in March, or banning universal injunctions altogether. Neither is likely to garner enough support to withstand a filibuster.

The issue will most likely be left to the courts to decide—and it appears the Supreme Court may be ready.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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