Nationwide Injunctions Should Have Been Nullified Long Ago
OpinionCommentary Baltimore Sun
Nationwide injunctions should have been nullified long ago | GUEST COMMENTARY
By George Liebmann
PUBLISHED: July 2, 2025 at 2:53 PM EDT
The recent decision of the Supreme Court denying the nation’s thousand-odd federal district judges the power, absent class action treatment, to grant nationwide injunctions has generated hysteria from partisans. Critics of last Friday’s ruling in Trump vs. Casa, Inc. were considerably less enthusiastic about nationwide injunctions during the Biden administration, when a single judge in Texas issued several rulings scuttling the administration’s polices. Those injunctions prompted the federal Judicial Conference to ensure that constitutional cases were allocated at random among several judicial districts so as not to be decided by a single judge.
During the New Deal, President Franklin D. Roosevelt’s opponents brought suits in remote districts to prevent corporations from complying with new legislation; the federal government frequently did not even receive notice of the litigation. The administration responded by requiring that the attorney general be notified when a federal statute was called into question and through legislation requiring that agencies could be sued only at their official residence, in Washington, D.C.
This legislation created few problems until the mania for “juristocracy” in recent decades fostered by civil rights organizations. A system in which a thousand judges have field marshal’s batons in their knapsacks devalues the roles of Congress and state legislatures. In France and Germany, only a single constitutional court can invalidate legislation. In Great Britain, only four appellate courts can declare legislation to be inconsistent with the European Convention on Human Rights, and they can be overruled by Parliament.
But America’s liberals did not complain so long as conservative state laws were invalidated by single judges. Indeed, reversals of such judges by the Supreme Court were said to be the result of a sinister “shadow docket” in which the Supreme Court acted with insufficient deliberation. It was only when liberal legislation was undermined by lower court judges that demonization of some district judges began.
Some 30 years ago, I suggested restricting the power of constitutional invalidation to the Supreme Court and the 12 federal courts of appeal.
As Justice Brett Kavanaugh’s concurring opinion in last week’s case indicates, that is what the Supreme Court has now decreed. The district courts are disabled from granting national injunctions; the Supreme Court and courts of appeal are to regularly grant stays pending final adjudication.
Those who consider that the disempowering of district courts empowers President Donald Trump should remember that the Supreme Court has upheld habeas corpus. It is the most important individual right declared in the Constitution, is antecedent to the Bill of Rights and the Fourteenth Amendment, and, President Abraham Lincoln’s administration notwithstanding, is an indispensable guarantee of freedom from fear for political actors.
The central function of the judiciary, in all places, is the protection of individuals against arbitrary confinement by the executive. The Supreme Court does not have a policy veto over national legislation; only the president has that. Proposals to give it a policy veto over state legislation were three times rejected by the Constitutional Convention. The jurisdiction of the courts is limited to “cases and controversies.” It is true that there has been pre-clearance review by the courts and bureaucrats of state voting rights legislation, a heroic measure directed against the rigid caste system in the South based on disenfranchisement that the Supreme Court has steadily and properly cut back as the problem disappears.
The idea that executive absolutism can be stopped by a single district judge is a romantic but inaccurate one. Historically, the Supreme Court has been quite strategic in what it invalidates and has been reluctant to take on the two other branches at one time.
For instance, Chief Justice John Roberts rescued the court from a head-on clash over health care with a Democratic Congress and president. Under FDR, the Supreme Court only moved to invalidate the president’s National Recovery Administration in 1935, when it had lost congressional support.
And in 1965, the Supreme Court invalidated the Communist Control Act of 1950, but that statute had been undermined by a vehement presidential veto. President Harry S. Truman’s seizure of the steel mills was invalidated, but as Justice Robert Jackson famously demonstrated, it had not been authorized by Congress, and the Korean War was highly unpopular when the decision was rendered.
A severe clash between the court and the president over immigration seems similarly unlikely while the president appears to enjoy a mandate for a restrictive policy. The same is true of the complaints of universities and nonprofits about Trump’s outrages on their autonomy: Many consider that they have brought it on themselves. The decision of a Maryland district judge, Adam Abelson, enjoining the administration’s anti-DEI policies is especially vulnerable, defying an electoral mandate and the Supreme Court’s own turn to a color-blind constitution.
Trump’s Achilles’ heel, where his policies may yet be countermanded by the judicial branch, are his arbitrary tariffs, having their root in a delegation as broad as that for FDR’s National Recovery Administration. Tariff-induced inflation accompanied by high interest rates would sap his popularity with his electoral base and the Republican Party. Trump knows this, hence his pressure on Walmart to control prices and on the Federal Reserve to print money in advance of the midterm elections.
The Supreme Court knows this also, hence its hasty and premature dicta insulating members of the Federal Reserve Board from removal. A lawsuit led in part by Professor Michael McConnell of Stanford is pending in the federal circuit. Though ostensibly about tariffs on Chinese clothing and household appliances, it is really about executive absolutism. The Schechter case in 1935 that invalidated the National Recovery Administration was likewise about absolutism. If McConnell prevails, old and dilapidated though I am, I would be happy to assist in carrying him in triumph from the courtroom.
George Liebmann (george.liebmann2@verizon.net), writing in his individual capacity, is president of the Library Company of the Baltimore Bar and the author of various works on law and politics, most recently “The Tafts” (Twelve Tables Press, 2023).
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