How do you solve a problem like nationwide injunctions?
But the court's answer to that question will have far-reaching reverberations and could significantly change the way district judges operate, how federal policy is implemented, and litigants' ability to seek the relief necessary to protect not only their rights but also the rights of others.
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Such major policy decisions, of course, should be handled by lawmakers. That's their job. But the once-bipartisan deliberations on nationwide injunctions have devolved into viciously partisan clashes on Capitol Hill. So instead of legislation that is carefully considered and nuanced, the Republican-controlled chambers of Congress have advanced
That is a shame, because there are reasonable arguments being made on both sides of the aisle. Senator Chuck Grassley, an Iowa Republican who chairs the Senate Judiciary Committee, correctly noted that nationwide injunctions have spurred the practice of forum-shopping: litigants filing lawsuits before judges they believe will be on their side, based on who appointed them.
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'That reaches far beyond the legitimate authority of the court and becomes policy making,' Grassley said at a
But there is no one-size-fits-all solution, as Senator Sheldon Whitehouse, Democrat from Rhode Island, noted at the hearing. 'This ain't that easy,' Whitehouse said. 'If you are a district judge and you decide that a rule is unconstitutional, or that an action is unconstitutional, and that action plays out [nationally], the law of that subject ought to be applicable in other districts.'
They are both right: Forum shopping should be discouraged, and judges shouldn't be lawmakers, but litigants should also be able to seek a remedy — even on an emergency basis — that actually solves the issue they are suing over.
But the hearing didn't stick to reasonable discussion points. At one point, Senator Ted Cruz, Republican from Texas, charged that '
Senator Amy Klobuchar, Democrat of Minnesota, responded. 'The only reasons there are all these injunctions [against Trump's actions], Senator Cruz, is that he's violating the Constitution,'
'Why don't you file them in red districts?' Cruz demanded.
It's safe to say that a bipartisan compromise is not coming out of the Senate, even if a GOP-sponsored bill to curb nationwide injunctions
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But now the ball is in the Supreme Court, where justices across the ideological spectrum have expressed frustration with nationwide injunctions and the forum-shopping they incentivize.
'You look at something like that and you think, that can't be right,' Justice Elena Kagan said in 2022
Justice Neil Gorsuch also expressed frustration during oral arguments in the court's consideration of a 2024 district court order nullifying federal approval of the abortion medication mifepristone.
'This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,' Gorsuch said, referring to the Food and Drug Administration.
Now the court will have to issue an opinion on the matter, albeit on the
court's so called 'shadow docket' of matters being considered on an emergency basis and with more limited briefing than would be available for cases on the court's regular docket. The justices can recognize that there is a place for nationwide injunctions — especially when an unknown number of people may be harmed by the executive actions they stop. But they can also seek to curb abuses.
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They must tread carefully, lest they, too, act like lawmakers in robes. Let's hope they are able to navigate such a crucial task.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at
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