It’s Time for the Supreme Court to Kill Nationwide Injunctions

Perhaps the US Supreme Court was watching the Senate Judiciary Committee hearing for Brett Shumate to lead the Department of Justice’s civil division—and hopefully it liked what it heard.

Sen. John Kennedy (R-La.) asked whether nationwide injunctions were lawful. Shumate correctly asserted there was no lawful basis for them in federal statutory or US Supreme Court precedent. He clarified that point by stating the proper role of district courts is to decide concrete disputes between parties—not impose judgments on the entire country.

Kennedy was impressed, Shumate passed the test, and Kennedy voted to support him. Shortly after, the court scheduled oral arguments in Trump v. CASA, Inc.—set for May 15—in which it will rule on the legitimacy of nationwide injunctions once and for all.

A litany of challenges to Trump administration policies have been filed in some of the most liberal federal courts in the country: the Western District of Washington, where all seven active judges were appointed by President Joe Biden; the District of Maryland, where nine of 10 active judges were appointed by Democratic presidents; and the District of Massachusetts, where 11 of 13 active judges were appointed by Democratic presidents.

The composition of the benches presiding over these lawsuits against the current administration is no coincidence. Litigators hostile to President Donald Trump’s policies knew to file in places where judgments in their favor were practically guaranteed—and the district judges didn’t disappoint.

If restraint is a judicial virtue, a number of federal district judges in America’s bluest urban enclaves need to find religion. Reasonable people can disagree on substantive outcomes, but what allows our federal judiciary to endure is widespread public belief that courts act in good faith.

When the public loses that confidence, trust in the courts diminishes and paves the way for the constitutional crisis on the verge of unfolding right before our eyes.

Public confidence in the federal courts relies on the consistent production of high-quality, published, judicial decisions. Unfortunately, the decisions some Democratic-appointed judges are producing lately are embarrassing.

Recent edicts prove that some judges aren’t acting as neutral umpires calling balls and strikes.

• In Boston, the US Court of Appeals for the First Circuit rejected the Trump administration’s decision to end a mass migrant parole program benefitting hundreds of Cubans, Haitians, Nicaraguans, and Venezuelans. Rather than issue a reasoned written decision in this important case, the First Circuit rejected the administration’s arguments in a single paragraph on the court’s docket tracking system that isn’t easily accessible to the public.
  
• In Washington, D.C., a judge ordered the DOJ to turn an airplane full of alleged MS-13 gang members around mid-flight at an oral hearing. His later entered a written order that made no mention of it, but he told the DOJ it was bound by his oral remark and attempted to hold the department in criminal contempt for failing to obey it. The D.C. Circuit subsequently put a hold on the judge’s contempt proceeding.
  
• In Manhattan, a judge entered an ex parte order at 2:16 a.m. on a Saturday preventing the Department of Government Efficiency from accessing Treasury Department records, which prevented the administration from responding or even publicly addressing the order for days.
  
• In San Francisco, a judge stopped the Trump administration from terminating a grant that funded legal services for unaccompanied migrant children. The judge previously worked as the managing attorney of the Immigrants’ Rights Project at Community Legal Services of East Palo Alto—the lead plaintiff in the case. Inexplicably, the judge denied the DOJ’s recusal motion.
  
• Also in San Francisco, a judge ordered six federal agencies to rehire more than 16,000 probationary workers who had been fired until the Supreme Court stepped in and put a hold on it.

Make no mistake, these decisions are all symptoms of an underlying problem—judges abusing the availability of nationwide injunctions to transcend the bounds of Article III and declare themselves national policymakers. This remedy is weaponized when lawsuits seeking to enjoin Trump’s policies are filed in jurisdictions with exclusively Democratic-appointed judges.

For example, a 2024 Harvard Law Review study concluded that more than 50% of the nationwide injunctions issued since 1963 (64 of 127) were imposed against the first Trump administration and that more than 92% of the judges who entered them were appointed by Democratic presidents.

Although Republican attorneys general sought to use Democrats’ playbook against the Biden administration and secured 14 nationwide injunctions—all from judges appointed by Republican presidents—their actions were merely a fraction of the number entered against Trump then or now.

According to a Congressional Research Service report filed in March, the current Trump administration was already laboring under more nationwide injunctions in the first two months (17) than the Biden administration suffered over the duration of his term (14).

The Supreme Court needs to fix this mess. District judges aren’t executive officials with authority over the entire country, and their abuse of the nationwide injunction undermines public confidence in federal courts as neutral decision-makers. That in turn causes long-term damage to the public’s perception of our separation of powers.

Hopefully, the Supreme Court will issue the final injunction to prevent judges from behaving like robe-adorning political operatives. By doing so, the justices will restore the lower courts back to the roles the Founders envisioned—as arbiters of disputes between parties.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Robert Luther III is a distinguished professor of law at the Antonin Scalia Law School at George Mason University where he teaches constitutional law.

Write for Us: Author Guidelines