During Thursday's Supreme Court oral arguments, Justice Ketanji Brown Jackson questioned an attorney about universal injunctions.
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00:00actions we've seen over the last few years, administrations.
00:03Justice Barrett?
00:04Mr. Quirk, and I just have one question.
00:05You said that you're in bucket one, so you felt like you were playing kind of the amici role.
00:10I understand why you might think you're in bucket one for the associational point.
00:13Do you think you're in bucket one for individual plaintiffs?
00:17So I don't know that I would extract them because the...
00:20Well, named plaintiffs.
00:21Like, let's imagine you had individual plaintiffs that are named members of the association.
00:24So I guess what I'm saying is let's take the association outside of it
00:27and let's just say that we're talking about individual plaintiffs.
00:30Would you put that in bucket one?
00:31So there I would go to the second injury I had identified earlier,
00:35which is if you're asking...
00:36Our individual plaintiffs have pseudonames right now.
00:38That would be contemplating a scenario where they would have to identify themselves
00:44to the federal government and say,
00:46I am the plaintiff in this case,
00:50at which point they are immediately vulnerable to deportation.
00:53Even again, if they're here lawfully,
00:54we've seen the government removing visa holders and asylum seekers.
00:58Mrs. Jackson?
01:00So I think I understand your argument.
01:02There's just one little piece of it that is confusing to me,
01:05and I hope you can clarify.
01:07So if we view the relief in this case and others like it
01:11to be a judgment ordering the defendant not to do something
01:16that the court has found to be likely,
01:18because we're in the interim stage, unlawful,
01:21are non-parties in that situation actually getting relief,
01:28or are they just incidental beneficiaries of an order
01:32requiring the government not to do this harmful thing?
01:37I thought it was the latter.
01:39And that just, you know, the government is told by the court,
01:43don't do X.
01:43And of course, anybody who would have been harmed by the government doing X
01:48is benefited by that,
01:50but they're not really, I thought, getting relief.
01:53But here's where I get confused,
01:55because I thought they're not getting relief
01:57because they can't come into court independently
02:01and seek a contempt ruling
02:05if the government continues to do the thing.
02:07They weren't parties.
02:08They don't have the judgment.
02:09That's what differentiates them from, say, the class action people
02:14or the plaintiff people.
02:16The reason why we have the rules for class action, etc.,
02:18is because at the end of the day,
02:21the members of the class are getting a judgment
02:23that they can then use to enforce this obligation
02:29as against the government,
02:30whereas the people in the universal injunction world
02:34are just benefiting if the government actually, you know,
02:39follows the order.
02:40Yeah, I think that what you're articulating
02:42is consistent with a long history of precedent and practice.
02:47I mean, it's the classic Rem case, right,
02:49making a declaration about property.
02:51I think Professor Fander's amicus brief
02:53is really helpful on that.
02:54He talks about the patent laws.
02:56And I think you can see that same instinct
02:58in the court's cases
03:00that Justice Sotomayor was talking about earlier, right,
03:02the railroad rates, Barnett, Pierce v. Society of Sisters.
03:06And I guess my point is that's why we don't need Rule 23,
03:08because we're actually doing conceptually a different thing.
03:12We're not trying to give all these people,
03:14everyone in the world,
03:15some sort of enforceable right as against the government.
03:18We are simply just doing what courts do, I thought,
03:21which is telling the defendant
03:23over whom they have personal jurisdiction
03:24that they have to stop doing something unlawful.
03:27And of course that benefits people.
03:28But the thing that confuses me about your argument
03:31is that you alluded at the beginning to Rule 71
03:34and suggested that the non-parties
03:39could somehow enforce this universal injunction.
03:43I didn't understand.
03:44I think Rule 71 contemplates that.
03:46It would be very onerous.
03:47I mean, I think when General Sauer,
03:49he was kind of contemplating the idea that,
03:51you know, tens of thousands of people
03:53were going to have to come to court individually.
03:55Right.
03:55But I think if you're right about that,
03:56it undermines the point that I'm making.
03:58Because it puts people in the same place
04:01as the class action folks and the parties
04:04in a way that I think raises legitimate concerns
04:08that some of my colleagues have put forward
04:10with respect to universal injunctions.
04:12So the thing that distinguishes them
04:14is that universal injunctions are not benefiting
04:17or giving relief to non-parties
04:21in any meaningful sense, is my theory.
04:23I think both have always been true
04:25and maybe they're in tension to each other,
04:27but Rule 71 originated in Equity Rule X,
04:31which was enacted or was put in place in 1842,
04:34which had the same idea of quite apart
04:37from representative suits, non-parties enforcing
04:41orders that provided them with relief.
04:45Although maybe this, as I'm talking,
04:46I think maybe I'm talking about under Rule 71,
04:49orders that provide relief.
04:51But let me just ask you this.
04:51You're talking about injunctions.
04:52Yes, what I'm asking you is,
04:54in this very case, if we have a series of plaintiffs
04:59that have actually named people
05:00and they get an injunction, as the government says,
05:04against, sorry, if they get a universal injunction
05:07of what they call a universal injunction,
05:09the government cannot enforce this executive order.
05:13Can someone who is not a non-plaintiff come into court
05:18to enforce that if the government violates it?
05:22So I'm hesitant to say no, both because Rule 71 exists
05:26and those aren't my clients, are my plaintiffs,
05:29and we needed this universal injunction.
05:31Yes, I understand.
05:32I'm just trying to figure this out.
05:33But I think both what you said is true.
05:36If we look at cases like Barnett and Pierce
05:38and we go all the way back,
05:40I think Justice Story's dissent that he signed on to
05:43in Cherokee Nation v. Georgia is terrific on this point.
05:46He was the preeminent scholar on equitable remedies,
05:49and he certainly thought, in the way that you're articulating,
05:52we are going to make a declaration
05:53about whether Georgia can enforce its laws
05:57on Cherokee Nation property,
05:59and that is just a declaration of the law
06:00that will have an impact on everyone.
06:03But I'm hesitant to say that Rule 71
06:06doesn't have any application.
06:07Thank you, counsel.
06:09Rebuttal, General Sauer.