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Democrats need to listen to Neil Gorsuch’s surprisingly good idea

Sometimes, it’s better to give your opponent what they want.

Neil Gorsuch Is Sworn In As Associate Justice To Supreme Court
Supreme Court Justice Neil Gorsuch and his wife, Marie Louise Gorsuch, at the White House in April 2017.
Eric Thayer/Getty Images

On Monday, the Supreme Court did something that’s become quite familiar in the Trump age: It reinstated a harsh new immigration policy that had been blocked by lower courts. This particular policy, known as the “public charge” rule, makes it easier for the United States to exclude lower-income immigrants.

The court did not explain its Department of Homeland Security v. New York decision, which is temporary — it lasts until the case makes its way through the appeals process and, most likely, to the justices’ decision on its merits. Monday’s order was split 5-4 along partisan lines.

Though the majority did not explain its decision, Justice Neil Gorsuch did pen a concurring opinion to which it is worth paying attention. It would limit the power of lower court judges to issue broad, nationwide orders suspending a federal policy. That’s what initially happened in the New York case, when a federal judge held that the public charge rule could not be enforced anywhere in the country.

In the short term, Gorsuch’s approach would obviously be an enormous boon to President Trump, as the Trump administration is behind many of the policies that are currently being blocked by lower courts.

But Democrats would actually do well to listen to Gorsuch. In the long run, they have far more to gain than the GOP from Gorsuch’s approach, which would strip liberals of a tool they’ve used to challenge Trump’s policies — but Democratic presidents have much more to fear from a too-aggressive judiciary than Republicans.

Nationwide injunctions, explained

Gorsuch’s opinion concerns what are sometimes referred to as “nationwide” or “universal” injunctions. An “injunction” is a court order compelling a party to behave — or, more often, to not behave — in a particular way. The plaintiffs in New York sought an injunction prohibiting the federal government from enforcing the new public charge rule.

One issue that often arises when a court issues an injunction is just how broadly that injunction should sweep. In New York, a lower court issued a nationwide injunction against the public charge rule, meaning the government may not enforce the rule against anyone anywhere, rather than issuing a more limited injunction that benefits only certain parties. Gorsuch argues that sweeping national injunctions are inappropriate.

Injunctions, Gorsuch writes, are “meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.” Thus, the appropriate remedy when a court issues an injunction against a particular policy is to prevent that policy from being enforced against the plaintiffs — and that’s it.

Gorsuch’s case against nationwide injunction echoes remarks by Attorney General William Barr, who claimed in a speech last May that federal courts issued more nationwide injunctions against the Trump administration than they issued in the entire 20th century.

It is difficult to confirm whether Barr’s claim is accurate, in part because scholars disagree around the margins about which orders qualify as “nationwide injunctions.” Nevertheless, there is at least some scholarly support for Barr’s claim that the rate of such injunctions has increased. A particularly influential paper by Notre Dame Law School professor Samuel Bray argues that “through the middle of the 20th century, there do not appear to have been any national injunctions.”

Regardless of whether such injunctions have grown more frequent in recent years, the politics surrounding nationwide injunctions have certainly changed. It wasn’t so long ago that liberals tended to rail against such injunctions as conservatives eagerly sought them from federal district judges.

In 2014, for example, then-President Barack Obama announced two policy changes that would have allowed millions of undocumented immigrants to live and work in the United States. But those policies never took effect because Republicans convinced a federal judge with an unusually conservative record on immigration to issue a nationwide injunction.

Though that case was eventually heard by the Supreme Court, the court (which was down a member because of Justice Antonin Scalia’s death) split 4-4 in that case, leaving the injunction in place.

Now the shoe is often on the other foot. The Trump administration announces a policy that is anathema to Democrats, a liberal litigant files a lawsuit, and a judge somewhere in the country issues a nationwide injunction blocking that policy.

It’s working in Democrats’ favor — for now. But in the long term, nationwide injunctions are likely to be a much bigger thorn in the side of Democratic presidents than they are for Republican presidents. The Supreme Court, after all, is controlled by Republicans. So liberal nationwide injunctions tend to be wiped away quickly, while conservative injunctions may last forever.

It’s also likely that Republican litigants will have a much easier time finding judges willing to block Democratic policies. Trump, after all, has filled the federal court with deeply ideological judges. And a party seeking a nationwide injunction may need to find only a single judge willing to hand down such an order.

The gaming of our judicial system

As Gorsuch notes, “There are currently more than 1,000 active and senior district court judges, sitting across 94 judicial districts, and subject to review in 12 regional courts of appeal.” In theory, any one of those judges could issue a nationwide injunction blocking any government policy.

Plaintiffs, moreover, have a surprising amount of control over which judge will hear a case challenging a federal law or policy. Often, plaintiffs can choose to file their case in one of many different judicial districts. For example, a plaintiff who files a suit in the Northern District of Texas (which includes Dallas and much of the northern quarter of that state) will typically have their case heard by one of the 17 judges who sit in that district.

Many districts are further divided into geographic “divisions.” And in at least some districts, cases filed in a particular division will be heard by a judge who sits in that division. Only four judges sit in the Northern District of Texas’s Fort Worth Division, for example. All of those judges are Republican appointees, and two of them are semi-retired judges with reduced caseloads.

Thus, a plaintiff who hopes to draw a conservative judge who will block a liberal policy can maximize their chances of doing so by choosing to bring their case in the Northern District of Texas’s Fort Worth Division. As a bonus, all federal district judges in Texas are overseen by the US Court of Appeals for the Fifth Circuit, a federal appeals court dominated by conservative Republicans.

A clever plaintiff, in other words, can hunt for the judge who is most likely to block a particular policy — ideally one who is overseen by an appeals court that shares that judge’s ideology — convince the sympathetic judge to issue a nationwide injunction, and halt that policy, even if the overwhelming majority of the nation’s judges believe the policy is legal.

As Gorsuch writes, “The stakes are asymmetric.” In a world with nationwide injunctions, “The government’s hope of implementing any new policy could face the long odds of a straight sweep, parlaying a 94-to-0 win in the district courts into a 12-to-0 victory in the courts of appeal.”

Nationwide injunctions mean that if the government faces “a single loss,” then “the policy goes on ice.”

Why nationwide injunctions are bad for liberals in the long term

While a district court’s order can place a policy “on ice” temporarily, the final word is likely to come from the Supreme Court. And Republicans are likely to hold a majority on the Supreme Court for the foreseeable future.

The Trump administration has an impressive win rate before the conservative Supreme Court. As University of Texas law professor Steve Vladeck noted on Twitter, the court’s decision in New York was the “10th time in three years that the Justices have granted emergency relief to the government in full pending an appeal.”

In total, Vladeck writes, the Trump administration has sought such relief 23 times from the Supreme Court. Ten of those applications were granted in full, three were granted in part, three were withdrawn, and only seven were denied. So the Trump administration has a win rate of 65 percent (excluding applications that were withdrawn) when it asks the Supreme Court to temporarily block a lower court’s opinion.

Once a Democrat enters the White House, by contrast, a Republican Supreme Court is much less likely to rule in the new administration’s favor. And Republican litigants will have no trouble shopping for district judges who will come down on their side.

Consider Reed O’Connor, one of the four federal district judges in Fort Worth, Texas. Before becoming a judge, he was a Republican staffer on Capitol Hill.

For several years, O’Connor had a superpower: He was the only active federal trial judge sitting in the Northern District of Texas’s Fort Worth Division. So federal litigants who filed a lawsuit in Fort Worth had a very high chance of drawing O’Connor as their judge.

As a result, a coalition of red states that wanted a court order striking down Obamacare had an easy time getting their case before O’Connor, who rewarded their efforts by declaring that the Affordable Care Act must be repealed in its entirety.

This decision wasn’t an isolated incident, either. In December 2018, the Dallas Business Journal’s Mark Curriden published a profile of O’Connor headlined “Judge Reed O’Connor is the ‘go-to judge’ for political conservatives.” Here’s how Curriden describes just two years of O’Connor’s record:

Since 2016, he has struck down Obama administration rules that expanded civil rights protections to cover sexual orientation, ruled that the Affordable Care Act illegally prohibited discrimination of gender identity, threw out a federal voting rights lawsuit against the city of Farmers Branch, and declared portions of the Indian Child Welfare Act unconstitutional because it supported racial preferences.

O’Connor is an unusually conservative judge, even in a judiciary increasingly staffed by Trump appointees. But a party seeking a nationwide injunction doesn’t necessarily need to convince the judiciary’s median judge. They only need to find one judge to hand down a broad order.

Once that happens, a Democratic administration can still ask an appeals court to lift the injunction, but many federal appeals courts — including the one that oversees O’Connor — are now dominated by very conservative Republicans. And appeals court decisions can ultimately be appealed to a Supreme Court that is also dominated by conservative Republicans.

All of which is a long way to say that Republican presidents typically will only face temporary roadblocks from lower court orders. Democratic presidents, meanwhile, could see their entire agenda sabotaged by nationwide injunctions.

Now is the time for the court’s liberals to form an alliance with Gorsuch

Gorsuch’s concurring opinion in New York was joined by one other justice — Justice Clarence Thomas. This means that, at least for the moment, the court’s four liberals could form a six-justice majority to limit nationwide injunctions.

It’s an open question whether Thomas and Gorsuch will continue to oppose nationwide injunctions if a Democrat is in the White House. As ACLU attorney Josh Block noted on Twitter, “We never heard a peep of concern from Justice Thomas about all the nationwide injunctions from Texas targeting trans people, immigrants, and employment protections.”

There is a real danger that, should the liberal justices join a majority opinion limiting nationwide injunctions, the court’s Republican bloc will find a way around that opinion in a future administration. There are, however, two ways liberals could partner with Thomas and Gorsuch to limit nationwide injunctions that minimize this risk.

The Supreme Court doesn’t simply have the power to decide cases. It also has the power to write the rules of civil procedure that govern cases in lower courts (although, in practice, this power is normally delegated to a judicial committee). A liberal/conservative alliance of justices, in other words, could write new rules limiting nationwide injunctions or preventing forum-shopping for friendly judges.

Fifth Circuit Judge Gregg Costa, for example, in 2018 proposed a process in which parties seeking nationwide injunctions would have their case heard by a three-judge panel, the decision of which would immediately be appealed to the Supreme Court. Costa’s solution would not eliminate nationwide injunctions altogether, but it would prevent a single district judge from issuing them.

Democrats in Congress could also potentially join with Republicans to pass legislation limiting nationwide injunctions or preventing litigants from effectively choosing which judge will hear their case. For the moment, at least, there is likely to be strong Republican support for such legislation — Barr himself routinely speaks out against nationwide injunctions.

But if Democrats wait until after they’re back in power, any chance of forming an alliance with Republicans to prevent judicial overreach is likely to evaporate overnight.