The Supreme Court must stop the trend of judge-shopping

Supreme Court Justice Sonia Sotomayor recently made headlines when she fired off a bitter dissent in Wolf v. Cook County that accused her colleagues of carrying water for the Trump administration. What was the focus of Sotomayor’s ire? The court’s recent decisions to impose stays on nationwide injunctions by federal district court judges.

In recent years, liberal and conservative groups have identified district court judges who might be inclined to enjoin presidents’ policy agendas from going into effect across the country. For example, during the Obama administration, lawyers found a sympathetic judge in the Southern District of Texas to impose a nationwide injunction against the president’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) policies. 

During the Trump presidency, lawyers have discovered sympathetic judges in New York, the District of Columbia and elsewhere to impose nationwide injunctions on this president’s policy decisions. In a very broad sense, once a district court judge determines that a party is likely to defeat the federal government on the merits, she may impose an injunction on the government’s policy and block it from going into effect. 

Put simply, one judge in one district can impose a nationwide block on a federal government policy. In some instances, there may be good legal reasons for such injunctions. Still, one cannot escape the monarchical power that a single unelected judge enjoys under this approach. 

Fast-forward to Sotomayor’s dissent in Wolf. She argued that the court has gone out of its way to lift lower court judges’ stays on the Trump administration. As she put it: “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant [the Trump administration] over all others.”

She may be right. But she may also miss the point. First, it appears that judges have imposed more nationwide injunctions on the Trump administration than any other administration. In other words, what looks like the Supreme Court going out of its way to “block” for the Trump administration instead could be a steep ramp-up in the use of injunctions by liberal lower court judges. If they impose more injunctions, it makes sense that the court might impose more stays as well. These are empirical questions that deserve further investigation. 

At any rate, the broader question is whether it is appropriate for a single trial court judge to block the implementation of an elected president. If so, what are the conditions under which judges should impose them? Remarkably, the law is unclear on such an important question. So we reached out to members of the Supreme Court bar for their thoughts. 

As part of our ongoing work to understand the attitudes of Supreme Court bar members, we surveyed them to determine their views on nationwide injunctions. We sought to determine what the bar thinks of them and whether they believe the court should weigh in on their use. We sent emails to 289 attorneys who had presented at least one oral argument at the Supreme Court over the past 10 years. We asked them to answer a series of questions about the court. 

We received full survey responses from 77 of our 289 respondents. This 27 percent response rate is firmly within accepted values for survey research. We received responses from attorneys in private practice, law professors, and federal public defenders. (We were unable to obtain answers from current attorneys in the solicitor general’s office.) All of our respondents had argued at least once before the high court. 

We asked respondents: “In recent years, federal district court judges have imposed nationwide injunctions that blocked the implementation of policies by both the Obama and Trump administrations. Do you support or oppose a district court judge’s ability to impose nationwide injunctions?”

Overall, the responses revealed mixed support for district court judges’ abilities to impose nationwide injunctions. A slight majority of respondents (53 percent) supported the use of nationwide injunctions by district court judges. Twenty-seven percent strongly supported nationwide injunctions, and 26 percent supported them somewhat. On the other hand, 35 percent opposed them. Eighteen percent opposed them somewhat; 17 percent strongly opposed them. Roughly 12 percent of the respondents neither supported nor opposed nationwide injunctions. 

Whereas respondents revealed mixed support for district courts’ nationwide injunctions, they overwhelmingly agreed that justices must step in to clarify the practice. 

We asked respondents: “While still thinking about these nationwide injunctions, some have argued that the Supreme Court should grant cert on this issue so as to determine the scope of district court judges’ power to issue nationwide injunctions. Do you think the court should review this question?”

The results were clear: 71 percent of respondents believed the court should step in and clarify the law. Fully 39 percent of respondents strongly believed the court should clarify the matter, and 32 percent somewhat supported the effort. A mere 7 percent opposed the court’s involvement. (The remaining 22 percent expressed indifference.)

For better or worse, the courts now often provide the final word on many of our political and policy arguments. The conflagration of political fires that seem to burn all our institutions to the ground these days is headed for the courts. The Supreme Court should weigh in on the issue of nationwide injunctions and head off that fire. Allowing litigants — conservative or liberal — to shop for sympathetic judges who will impose nationwide injunctions will damage the judiciary’s legitimacy. It’s time for the court to weigh in and offer some guidance on the matter. The bar agrees. 

Ryan J. Owens, J.D., Ph.D., is the George C. and Carmella P. Edwards Professor of American Politics at the University of Wisconsin-Madison, and director of the Tommy G. Thompson Center on Public Leadership.

Ryan C. Black is a professor of political science at Michigan State University.