Justice Kagan on Univeral Injunctions in 2022

Back in 2022, while speaking at the Northwestern University Law School, Justice Elena Kagan addressed the issue of universal injunctions, in the context of noting how the issuance of such injunctions forced the Court to consider more questions on an expedited basis through the emergency docket. Politico reported on the comments at the time, as noted by Sam Bray here.

Based upon the video, here are her remarks:

in in recent years some district courts have issued nationwide injunctions, and this happened in the Trump administration and it has also happened in the Biden administration so this has no political tilt to it, but some district courts have, you know, very quickly issued nationwide injunctions to stop a policy in its tracks that . . . the President and/or Congress has determined to be the national policy, and it just one district court stops it, and then you combine that with the ability of people to forum shop to go to a particular district court where they think that that will be the result and you look at something like that and you think that can’t be right that one district court, whether it’s in you know in the Trump years people used to go to the Northern District of California and in the Biden years they go to Texas, and it just can’t be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years that it takes to go through normal process.

One question is what Justice Kagan meant by saying that “it just can’t be right that one district judge can stop a nationwide policy in its tracks and and leave it stopped for the years.” Was this merely a policy view — that allowing individual district court judges such power is no way to run a railroad — or was it a view of the law? And, if the latter, did Justice Kagan’s view change? Was she persuaded by the briefing, subsequent academic scholarship or Justice Sotomayor’s dissent? Or was there something about Trump v. CASA that justified an exception from a more general rule? As Justice Kagan did not write separately in that case (and, indeed, did not write much this term), I don’t think we know.

The full video of Justice Kagan’s remarks is available on YouTube, and embedded below. The relevant portion begins around the 40-minute mark.

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