Judge VanDyke Mulls More ‘Skin in the Game’ In Nationwide Orders

US Circuit Judge Lawrence VanDyke suggested federal trial court judges should have more “skin in the game” when issuing rulings that apply nationwide, floating at times cheeky hypotheticals ranging from removing judges from the bench to murdering their pets.

While moderating a panel Wednesday at a conference hosted by the conservative Federalist Society, VanDyke, a Trump appointee on the US Court of Appeals for the Ninth Circuit, asked what the Supreme Court could do, short of banning nationwide injunctions, to place limits on the practice.

These broad rulings have drawn recent ire from conservatives who’ve argued the onslaught of court rulings against the Trump administration’s actions amounts to judicial overreach.

“You could say, if you issue a nationwide injunction, you have to shoot your dog, or something like that,” the judge said at the event in Washington, prompting some laughter. “That would, I suppose, make it so that judges had a little bit more skin in the game—for some judges that like their dog.”

VanDyke also posed hypothetical scenarios where the high court could remove a lower court judge from a case, or refer judges to the appeals court to evaluate if they “have bias against this administration” and couldn’t hear cases for the remainder of its time in office.

The conservative appeals court judge made his remarks roughly a week before the Supreme Court is scheduled to hear oral argument in a challenge to President Donald Trump’s executive order ending birthright citizenship for babies born in the US to certain groups of immigrants. The arguments won’t focus on the merits of the order, but rather on the nationwide scope of the rulings that blocked it from taking effect.

VanDyke has previously raised concerns about lower court rulings that halt policies nationwide before the Supreme Court has reviewed the case. In a concurring opinion last month, he said it is “problematic” that trial court judges can “effectively dictate nationwide policy on monumental issues.” He described the issue as an “unhealthy condition afflicting the very foundations of our national government.”

VanDyke at Wednesday’s panel described two “extremes”: one where the Supreme Court steps in, such as in the birthright citizenship case, to prohibit nationwide injunctions, and at the other end, where the administration stops following judges’ decisions.

“Both of those seem to be at one extreme or the other. I’m trying to figure out if there’s anything in the middle,” VanDyke said.

Several panelists said they thought Congress would be best positioned to consider the issue.

Jesse Panuccio, a partner at Boies Schiller Flexner LLP and former Justice Department official during the first Trump administration, responded that he has “no confidence” the Supreme Court would seriously address the issue of nationwide rulings and called on Congress to act to rein in judicial power.

Luke McCloud, a partner at Williams & Connolly who served as assistant to the solicitor general during the Biden administration, also raised the option to have cases heard by randomized panels to avoid forum-shopping.

“I think that there are a lot of options between, never having these injunctions on the table, and having them come up routinely, as I think the administration feels they have,” McCloud said. “But ultimately I think that’s a question for Congress and not for the courts.”