National and universal injunctions have been in the news. In the wake of an outpouring of scholarly interest in decrees that offer non-party protections, especially in litigation with the federal government, the Supreme Court has taken notice. Invoking Sam Bray’s view of the national injunction as “unthinkable” by standards of “traditional equity,” Justice Clarence Thomas argued in a concurring opinion in Trump v. Hawaii that such injunctions “appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts.” The Trump Department of Justice has issued guidance to its civil litigators, encouraging them to contest the proposed issuance of universal decrees. And members of Congress have considered legislative fixes that would narrow federal equity power.
Many fixes have been proposed and some will no doubt be adopted, particularly as federal courts grow more cautious about issuing such decrees. But as Mila Sohoni argues in The Lost History of the “Universal” Injunction, it may not make sense to frame any restrictions as constitutional limits on the remedial authority of federal courts. Adjusting the exercise of equitable discretion is one thing; curtailing equitable authority on constitutional grounds is quite another.
In suggesting that the absence of historical support from equity’s past placed the national injunction beyond the constitutional limits of federal judicial power, Justice Thomas adopted an interpretive approach to federal judicial power that one might term equitable originalism. Such an approach defines the power of the federal courts by reference to the “days of the divided bench,” when courts of law and equity administered separate remedial forms. On such a view, federal courts would refer to the practice of the High Court of Chancery, circa 1789, to define equitable power today.
One might contest such an approach to defining judicial power on any number of grounds. For starters, times change, and the remedial demands of modern life change with them. Since the Supreme Court’s decision in Brown v. Board of Education, the remedial needs of modern constitutional litigation have pressed the federal courts to grant forms of structural relief that one might struggle to analogize to the practice of the High Court of Chancery. Chancery administered complex remedies in appropriate situations, but it largely steered clear of public law matters. One might also observe that focusing on the practice of the High Court of Chancery in isolation might slight the package of judicial remedies that were administered in law and equity. In truth, much of eighteenth-century judicial oversight of government activity occurred in the common law courts in suits for damages and by way of writs of mandamus and certiorari. To the extent one looked only at equitable remedies in public law, one might too narrowly define the range of remedies that citizens (of the United States) or subjects (of Great Britain) could invoke at the relevant moment in history.
Sohoni offers another basis on which to question judicial power on the lessons of history. She documents a collection of non-party protective orders that date from well before the heyday of the Warren Court. Through a careful sifting of historical sources, Sohoni has located many early decrees and mandates, including the terms of the actual injunctions. She demonstrates that the Supreme Court and many lower federal courts granted non-party protective orders as early as 1913. Sometimes these broad remedies ran against the federal government and federal officials, sometimes against state officials. But their operation outside of formal class litigation blocked government officials as a more general matter, thus conferring benefits on parties not before the court.
Needless to say, the Supreme Court occupies a place in the Article III hierarchy different from that of the lower federal courts. As a result of their finality and nationwide application, orders issuing from the Court have the quality of settling questions of law and of conferring a species of non-party protection on all affected individuals within the United States. One can thus argue that the Court’s power to issue broad orders does not necessarily establish a similar power in lower federal courts to settle questions on a national basis. And before the rules governing class certification were amended in 1966 to allow for injunctive civil-rights classes, federal courts applied rather less formal rules for the provision of class-wide relief than they do today. Some early non-party protective relief may have issued where the plaintiff, although appearing alone on the pleadings, was viewed as representing a class of claimants.
On the other hand, national injunctions undermine both the rule barring non-mutual preclusion against the government and the desire for limited decisions that allow for the percolation of important issues of constitutional power in the lower courts. Some modesty and rectitude in the issuance of non-party protective orders should commend itself to all levels of the Article III judiciary.
But Sohoni argues that it does not make sense to frame operational concerns with the administration of relief in terms of Article III judicial power. As she observes, “[t]here is only one ‘judicial power,’ and that power includes the power to issue injunctions that protect those who are not plaintiffs.” Sohoni would invite the participants in the debate to reframe the issue in policy and prudential terms and take the threat of Article III invalidation off the table. Such an approach would leave a series of constitutional protections in place, protections attending to the due process interests of those whose claims have been jointly presented in the form of a class action. Defendants may have a due process right to bind class claimants who join together, just as plaintiff class members have a due process interest in adequate representation and in avoiding litigation that lumps them unfairly together with folks who do not share their interests. Class action law has evolved to account for these due process concerns, growing more punctilious over time.
Sohoni’s lost history suggests that those who propose to articulate constitutional limits on the scope of injunctive relief might better frame their concerns in due process rather than in Article III terms. Such an approach would have the added advantage of binding the state courts in their administration of non-party relief and would thereby encourage the Supreme Court to consider, from a somewhat broader perspective, the consequences of any constitutional adjustments.