During Thursday's oral arguments, Justice Samuel Alito questioned NJ Solicitor General Feigenbaum about universal injunctions.
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00:00The decision on the matter that is, I understood to be before us, the narrow question that I understood to be before us,
00:10make any, be helpful in any way if we do not peek at the merits and we also do not decide whether you have standing.
00:20So I'm not sure how you could decide whether or not we got an appropriate scope of relief without figuring out what our own injuries are.
00:29Because how you decide, this is the United States' own argument, how you decide whether or not we should get relief for our own injuries turns on what our injuries are that require relief.
00:39And so I do think we have pretty significant pocketbook injuries, like in Nebraska, to the tunes of millions of dollars.
00:44And whether we get those remedies or don't get those remedied is going to turn on the merits, is going to turn on the nature of the harms, and then ultimately the workability of the alternatives.
00:53Thank you, Counsel. Justice Thomas. Justice Alito.
00:56Well, General Sauer began by outlining problems that he sees being created by universal injunctions.
01:06And he said that the issue was a non-ideological issue and a non-partisan issue. Do you agree with that?
01:14I do think presidents of both parties have objected to nationwide injunctions. I agree.
01:18So what do you say about the practical problem? So let's put out of our minds the merits of this and just look at the abstract question of universal injunctions.
01:32What is your response to what some people think is the practical problem?
01:37And the practical problem is that there are 680 district court judges.
01:41And they are dedicated and they are scholarly.
01:44And I'm not impugning their motives in any way.
01:47But, you know, sometimes they're wrong.
01:49And all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want.
02:03Now, on a multi-member appellate court, that is restrained by one's colleagues.
02:08But trial judge, the trial judge sitting in the trial judge's courtroom is the monarch of that realm.
02:18And there are situations in which trial judges, the president does something.
02:23It could be President Trump.
02:24It could be President Biden.
02:25It could be President Obama.
02:27The trial judge says, this is unlawful and I'm going to order, I'm going to enjoin it.
02:34And I'm convinced I'm right, so I'm not going to stay the injunction.
02:38And then an application is made to the Court of Appeals to stay the injunction.
02:43The Court of Appeals gives it the back of the hand.
02:46And then the case comes immediately to us in the context of an emergency application.
02:52And some of us have said, well, we don't think we should do anything in those situations unless it is indisputably clear that the Court below was wrong.
03:05So what do you say to that practical problem?
03:08So we're mindful of the practical problems.
03:10I will say the states have had a through line as well across administrations.
03:14We have never believed, even as nationwide injunctions restrained policies that we favored, that they were categorically off the table.
03:19We've always taken the position that they are sometimes available in narrow circumstances, whether we like the policy or don't like the policy.
03:26And so you might have some cases where the nature of the harm, this is the DACA example from my friend on the other side, where the nature of the harm, which was Texas saying it had to give benefits to residents in the state, is actually entirely remedied by a statewide state-only injunction that applies just to Texas.
03:44Because that might incentivize individuals to leave Texas, and then Texas doesn't have to give them benefits anymore.
03:50So you might have a case like that.
03:51But sometimes you are going to have cases where it is impossible to remedy the state's own injuries, and the alternatives are not practically or legally workable.
04:00And that describes this case perfectly.
04:01And so I don't think the answer is a bright line that means even in those situations, it's not possible for the states to get relief.
04:07In deciding the question that is before us here, do you think we should – never mind, I withdraw that.
04:16I have no further questions.