Guest Post: Elias Neibart, "Universal Injunctions in All But Name?"

Elias Neibart, a graduating 3L at Harvard Law School, offers further thoughts on last week's oral arguments in Trump v. CASA

The Supreme Court recently heard oral argument in Trump v. CASA. At issue was the fate of the so-called “universal” injunction. This post doesn’t make any predictions about how the Court might rule. Instead, it makes one observation: Even if the Court does away with the universal injunction, several of the Justices made clear that litigants would still have other procedural tools at their disposal to obtain broad-based (call it universal?) relief. That is, universal injunctive relief might be dead after CASA. But some form of universal relief would still be on the table. CASA, then, may ultimately not have as much bite as many onlookers suspect: The current state of legal affairs won’t be totally upended. On top of that, the universal injunction replacements floated by the Court carry with them the same pathologies—rushed decision-making and increased pressure on the emergency docket—that made universal injunctions so disfavored in the first place.

There were at least two ways the Justices thought that universal relief could survive even if universal injunctions were nixed: the Supreme Court itself could take more cases on an expedited schedule or there could be an increase in the use of class certification (especially on an emergency basis). Let’s take those one at a time.

Professor Jack Goldsmith discussed the first mechanism in a recent post. Goldsmith points out that “[Solicitor General John] Sauer reiterated to at least five Justices at oral argument that the government would follow a judgment of the Supreme Court and would respect the precedent it creates, universally with respect to non-parties.” That is, even though Supreme Court judgments don’t “bind non-parties any more than a lower court judgment does,” the federal government said that it would view those judgments as binding with respect to non-parties.

The government had a slightly more qualified take on how it would view the decisions of circuit courts. As Goldsmith notes: “The government stated in its application that a ‘court of appeals’ published opinion . . . constitutes controlling precedent throughout the relevant circuit.’ But Sauer hedged on this point at oral argument, saying only that the government would ‘generally’ respect court of appeals precedent.” In other words, the government would generally view court of appeals precedent as binding with respect to non-parties—but it wouldn’t necessarily do so all of the time.

What does this mean? In a world with no district court universal injunctions, the value of a Supreme Court judgment in one’s favor would be even greater. The government conceded that it would view those judgments as binding, even with respect to non-parties. So, a Supreme Court judgment can afford universal relief—of a sort—where the lower courts cannot. The consequences of this are predictable. Litigants who want broad relief will want to get their cases to the nation’s highest Court as quickly as possible.

That will likely result in more petitions for “cert before judgment.” Indeed, Sauer mentioned during his argument that “[c]ert before judgment would be another tool through which this Court could act expeditiously” to resolve cases of national importance.

The Chief Justice also made clear, citing the recent TikTok case (which the Court “did…in a month”), that the Court would stand ready to intervene—quickly—in high-profile cases. In his words, the Court could handle those cases “expeditiously.”

In other words, the Chief Justice recognized that the Court has tools at its disposal—either by granting cert before judgment or by hearing cases, like TikTok, at warp speed—to decide cases quickly. And, of course, given the Solicitor General’s concession, once the Court makes a ruling in one of these cases, the Court’s precedent would bind parties and non-parties alike. All in all, that means if litigants act fast enough, they can get universal relief even with no access to a universal injunction. They’ll just need to rush their case to the Supreme Court.

But if we are swapping out universal injunctions for rushed merits decisions, are we really addressing the problems folks had with these injunctions in the first place? Goldsmith addresses this point head-on. He writes: “If the trade off for eliminating universal injunctions is accelerated Supreme Court decisionmaking without lower court percolation, as in TikTok, that would not be a large improvement. As Sauer said, a primary reason to eliminate universal injunctions is to prevent ‘rushed, . . . fast and furious decisions on the merits.’ Yet for cases of obvious government illegality, the Court in a regime of no universal injunctions will be under enormous pressure to expedite the case to reach the merits quickly.”

That’s all to say that the Court’s first “replacement” for the universal injunction—the hurried merits decision—will keep the availability of universal relief alive. But by doing so, the Court will likely incentivize a process that shares the pathologies of our current paradigm.

What about class certification?

Justice Jackson summed up the federal government’s position succinctly. “So as far as I can tell,” she said, “[the Administration’s] bottom line seems to be that what you call universal injunctions give relief to nonparties without going through the necessary steps, which you identify in Rule 23.”

In other words, according to the federal government, courts can issue broad-based relief. But to do so, courts must ensure that they are giving relief to those who meet all the requirements of Federal Rule of Civil Procedure 23. After all, as Sauer noted: “[I]n a rule 23 class, every member, represented member of the class, has standing by hypothesis.” Giving relief to those parties wouldn’t run afoul of Article III. And insofar as class actions are similar to “bills of peace,” granting an injunction for the class wouldn’t violate traditional principles of equity either. As Justice Kavanagh put it, the federal government was contending, then, that “Rule 23 [was] the cure-all.” It would deliver the same benefits of universal injunctions but under another banner.

But as Justice Gorsuch noted, class certification “takes time.” And “there are . . . hurdles that have to be met to achieve” it. So, given that, maybe swapping out universal injunctions for class action injunctions would, in fact, represent a sea change. It would limit the scope and speed of injunctive relief.

Not quite. Sauer was quick to call attention—several times— to “four recent district court decisions where class-wide relief was given on kind of an emergency basis.” On top of that, Justice Barrett asked the SG point blank: “[I]f there were a class appropriate for class certification, you concede that that could resolve the question quickly.” Sauer responded: “Yes, absolutely.”

In other words, some of the Justices—and perhaps Sauer too—recognized that swapping out universal injunctions for class action injunctions wouldn’t change much, especially considering that class-wide relief could be given on an emergency basis. Class-wide relief, in practice, would mirror the kind of relief we are seeing issued under the universal-injunctions regime.

Justice Kavanaugh said as much: “And I guess Rule 23(b)(2), for a lot of the cases we’ve had over the past 25 years that you talked about where there have been universal injunctions or the lower courts have had that, I mean 23(b)(2) could have been used in a lot of those presumably, correct? Eviction moratorium, student loans, OSHA vaccine mandate.” In other words, he was pointing out that if the Court ditched universal injunctions and embraced the class-wide relief model, the legal landscape wouldn’t drastically change.

In fact, Justice Kavanaugh even suggested that using the class-wide relief system—not universal injunctions—“may . . . be a technicality, but it seem[ed] to [him] that the technicality of Rule 23 . . . . provide[d] . . . what’s needed here in terms of getting relief to people.”

Justice Barrett made a similar point. “If the same thing could happen, which is effectively the EO being enjoined everywhere via class action . . . is there any difference, in your view, between, [a universal injunction and class-wide relief for] all individual plaintiffs. . . . [I]s there any practical distinction you see? . . . Do you want to say anything about where there’s a practical difference between a universal injunction and a loss in the class?”

But then Justice Alito and one of the advocates, Kelsi Cokran, chimed in. In essence, they wondered the following: If there’s no practical or meaningful difference between universal injunctions and class-wide relief, what’s really at stake in these debates?

Justice Alito asked Sauer to imagine if the Court got rid of the universal injunction but also “h[e]ld that . . . it is possible for a plaintiff to get emergency certification of a class.” If that were the case, “would the practical problem[s] [associated with universal injunctions] be rectified to any substantial degree?” Sauer conceded that such a holding would still allow for “very broad relief.” Justice Alito responded: “So the answer is that the practical problem would not be solved, and, if that’s the case what is the – what is the point of this argument about universal injunctions?”

Put simply, Justice Alito was suggesting that there seemed to be very little practical upshot of the Court getting rid of universal injunctions.

Cokran seemed to agree. She emphasized “Justice Alito’s point . . . that all [the Court would be] doing is taking the non-party injunctions that are happening now outside of Rule 23 and shoving them into Rule 23.” And by doing that—and by allowing class certification on an emergency basis—the Court would not “actually [be] addressing its emergency docket. It[] [would just be] slapping a label of class certification on” universal injunctions.

This is similar to the tension identified by Goldsmith above: The Court’s replacement of “universal injunctions” with another procedural mechanism may still lead to “accelerated . . . decisionmaking without lower court percolation.”

“Shoving universal injunctions into Rule 23” and allowing them on an emergency basis may not—as a practical matter—drastically change the legal state of affairs. And insofar as it doesn’t upend the existing paradigm, it also doesn’t solve some of the issues associated with universal injunctions. As Sauer put it: “[These] injunctions prevent the percolation of novel and difficult legal questions. They encourage rampant forum shopping. They require judges to make rushed, high-stakes, low information decisions. . . . They increase the pressures on th[e] Court’s emergency docket.” The Rule 23 replacement—at least according to Justice Alito and Cokran—seems to be subject to the same pitfalls.

The fate of the universal injunction is unknown. But if that procedural device is cast aside, the Court seems poised to embrace different tools to fill its void. As we’ve seen, these tools—fast-paced merits determinations and emergency class-wide relief—might not change the current legal state of affairs all that much. They’ll still allow for relatively hurried “universal” relief, which means the problems associated with the universal injunction will likely persist. The universal injunction may meet its end in CASA, but at least some of its pathologies will live on.