AALL 2018 Recap: Should One Judge Have All This Power?

By Benjamin Keele

scales-of-justiceIn recent memory, several high-profile court cases have seen federal district judges issue injunctions that purport to bind conduct and parties beyond the parties to this case and outside the judges’ districts. These injunctions have been dubbed nationwide, global, and universal. In the session “Should One Judge Have All This Power?,” Charlton Copeland (University of Miami) and Michael Morley (Florida State University) discussed the history and consequences of these far-reaching remedies.

Copeland noted that while universal injunctions were relatively new, compared to other remedies, they have been used before. In the 1960s, judges issued universal injunctions against federal agencies. These injunctions were a tool for judges to discipline agencies empowered by important legislative reforms. I found Copeland’s point that universal injunctions were primarily used as tool in conflicts between courts and executive agencies especially interesting. He also suggested that as congressional action has decreased due to partisan gridlock, then administrative actions have become more important and resulted in more conflicts with courts. More conflicts between courts and agencies put judges in more positions in which they may decide to deploy universal injunctions.

There are two risks with the universal injunction strategy. First, these judicial actions reduce the impulse for congressional oversight—if a judge prohibits an agency action, then legislators have less need to step in with hearings or other oversight measures. Second, universal injunctions undermine the Supreme Court’s discretionary jurisdiction by adding urgency for the Court’s review before the usual record can be developed (Justice Thomas complained about this in his concurrence in Trump v. Hawaii).

Morley distinguished between four types of injunctions that may count as universal: injunctions that relate to the plaintiffs, regardless of what judicial district they are in; injunctions for a nationwide class of plaintiffs; injunctions that regulate a defendant in all districts; and injunctions for a nationwide class of defendants. By separating these varieties, Morley suggested we can more clearly see when a judge is doing something unobjectionable (an injunction protects a plaintiff, even if they go to a neighboring district) or extraordinary (prohibiting any agency, whether or not they are named party yet, from implementing a policy). He also noted that some sorts of class-action remedies may be more appropriate in many cases that may involve universal injunctions.

The panelists did not spend much time directly engaged with whether universal injunctions are constitutional—Copeland did posit that perhaps courts should have more power during times of extreme partisan gridlock—but for anyone interested in these injunctions, this session is an accessible introduction. The session recording is at https://www.aallnet.org/recording/aall2018-onejudgehaveallpower/.

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