Injunctions, in which courts strike down executive actions in all 50 states, are becoming increasingly common. Only six were issued under President George W. Bush. Under President Donald Trump, judges handed down a whopping 64 injunctions, 59 of which were issued by judges appointed by Democratic presidents. To date, President Biden has had 14 nationwide injunctions issued by Republican-appointed judges, and many more provisions have been lifted using a similar mechanism, known as “vacuums.”
What is most disturbing is that these decisions are concentrated in certain districts. Conservative victories are in Texas, liberal victories in California. Sensitive issues are even referred to certain judges, most notably Judge Kacsmalik, a former lawyer for the Religious Right, whose cases include restricting access to the abortion drug mifepristone and reopening loopholes in background checks for gun sales. When judges are randomly assigned to cases, there is a greater chance of a fair trial. This works well in geographically compact districts, but in a vast area like Judge Kacsmalik’s Northern District of Texas, it is possible to find a division with only one judge and file a case there.
The result has been the halting of progressive policies from immigration to abortion rights to student loans, as well as conservative pet policies like the transgender military ban and the ban on people from Muslim countries entering the U.S. The question is not whether these decisions were correct on the merits of the policies, but whether people who disagree with the president’s directives should be able to sue in the right place and see those directives argued before the right judges, who end up exercising a de facto veto over federal policy.
The issues of so-called judicial districting and nationwide injunctions are intertwined. The prospect of each makes the other more insidious. Without the near certainty of a sympathetic judge, challenging an executive action could be counterproductive. And without the possibility of forestalling a nationwide policy, even the most favorable rulings are limited. So it may not be surprising that bills from Senate Majority Leader Charles E. Schumer (D-N.Y.) and Minority Leader Mitch McConnell (R-Ky.) both address the issue, but on different aspects.
Schumer wants to codify nonbinding guidelines issued by the Judicial Conference this spring to allow cases that seek to ban or mandate state or federal policies to be randomly assigned within districts. They ignore the Judicial Conference restrictions and instead pursue nationwide injunctions, meaning district court decisions are not binding on anyone other than the parties to the case and similar parties in the district.
There is no good defense to districting judges. The best defense is that random assignment of cases would force judges to travel significant distances when related cases arise. Nationwide injunctions are more complicated, but they at least require limitations.
These judicial orders allow one judge to rule on an entire country in one place. But sometimes a nationwide injunction is the most effective way to give plaintiffs fair and complete relief and stop clearly unconstitutional policies before they cause irreparable harm. Consider the Muslim travel ban: it is not reasonably possible for the thousands of affected people to all sue on their own or go through a class-action lawsuit.
The best answer may be to limit nationwide injunctions, rather than ban them entirely. Scholars have ideas. Congress could create a presumption against injunctions that would be overturned only if a judge finds that government officials willfully ignored established law, or if a judge proves that a nationwide injunction is necessary to fully repair the damage.
Curbing unfair judicial turnover reduces the danger of nationwide injunctions, and curbing nationwide injunctions reduces the impact of unfair judicial turnover. People of either party who are concerned about the politicization of the judiciary should be proactive in addressing both sides of the issue.
