Symposium: The stays – a practical victory, a legal concern

Lee Rudofsky is the solicitor general of Arkansas. Arkansas, through its Attorney General Leslie Rutledge, submitted an amicus brief in support of the federal government in these cases.

We are all familiar with the old adage that hard cases make bad law. But perhaps the more appropriate aphorism for modern-day courts is that high-profile political cases make bad law. They present great temptation to stretch the law, often in a noble effort to maintain institutional credibility by sidestepping thorny and divisive legal issues. But it is precisely in such cases that we must insist that our courts – especially our highest court – strictly follow the law if we are to maintain the respect for judicial pronouncements that runs so deep in American culture.

No one would dispute that the travel ban/pause cases are political cases of the highest profile. And thus it should probably come as no surprise that the law has been stretched by courts at all levels as they attempt to resolve these cases. But it’s worth briefly shining a spotlight on two liberties the U.S. Supreme Court has taken to date that offer some cause for concern.

The missing likely-to-succeed standard

As my colleagues ably explain in their symposium pieces, the Supreme Court stayed in part preliminary injunctions that had been entered by two lower courts against the travel ban/pause. The Supreme Court concluded that the lower courts had incorrectly balanced the equities in these cases and that an appropriate balance of those equities called for a far narrower injunction. But the court seems to have missed a step. As Justices Clarence Thomas, Samuel Alito and Neil Gorsuch point out in their partial concurrence, long-standing precedent requires the court to conclude first that a “stay applicant has made a strong showing that it is likely to succeed on the merits” before engaging in any equitable balancing. Yet the per curiam opinion conspicuously failed to discuss whether the federal government had satisfied this standard.

In his symposium piece, Josh Blackman posits that avoidance of this discussion allowed the court to issue a per curiam without drawing a dissent from multiple liberal justices. Such a theory fits well into the larger view held by many court watchers regarding Chief Justice John Roberts’ concern for the institutional credibility of the Supreme Court. But whatever one thinks of the virtues of institutional credibility and collegiality, the Supreme Court’s approach sends a troubling signal to lower courts.

For decades, the Supreme Court has been telling lower courts that preliminary injunctions and stays are extraordinary and drastic relief. As part of that message, the Supreme Court has made clear over and over again that – regardless of the balance of the equities – such relief should not be afforded unless an applicant has made a showing of both irreparable harm and some degree of potential success on the merits. Perhaps best exemplified by Winter v. Natural Resources Defense Council, recent history has the Supreme Court resisting efforts in the lower courts to water down the standards necessary for temporary relief.

But why should the lower courts be expected to take such instruction seriously in light of the Supreme Court’s stay analysis in the travel ban/pause cases? It strikes me as dangerous for the court to suggest (albeit implicitly) that lower courts can in some undefined set of cases issue a preliminary injunction or a stay without even addressing the “likely to succeed” component of the relevant analysis. This could unintentionally cause a loosening of the prerequisites for temporary relief – leaving the ”extraordinary” nature of the relief as merely a nice catchphrase. Such a result would be especially worrisome in the context of challenges to statutes or executive actions, in which the likelihood-of-success and irreparable-harm factors act as important, substantive guardrails confining the courts’ ability to interfere in the powers of a co-ordinate branch of government. The watering down or sidestepping of these standards at the very least raises substantial separation of powers problems.

Preliminary relief to a class without class certification

Although the Supreme Court stayed a large portion of the lower courts’ preliminary injunctions, it left the injunctions in place for people “similarly situated to” the plaintiffs – that is, “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” This might have been a realistic compromise designed to attract the liberal bloc of justices, but it has a significant flaw.

Black-letter law is clear that the scope of an injunction must be no broader than necessary to provide temporary relief to the specific plaintiffs in a case. That rule is another common-sense manifestation of the Supreme Court’s insistence that preliminary injunctive relief is an extraordinary and drastic remedy. So how does the court justify leaving in place the part of the injunction that covers people “similarly situated” to plaintiffs – or, to be more explicit, preliminary relief directed well beyond the specific plaintiffs in these cases?

It doesn’t. And its silence speaks volumes, especially in light of the pointed criticism on this very question offered by Thomas, Alito and Gorsuch. But more importantly, the Supreme Court’s failure to address this point head-on presents a significant risk of confusion in the lower courts. As a state solicitor general in an attorney general’s office, I often defend state statutes against preliminary-injunction requests that reach far beyond the one or two plaintiffs actually in the case. It is already difficult enough to get the lower courts to focus on precedent concerning the need for narrowly tailored injunctions. I fear that the Supreme Court’s example in this case will compound that difficulty with analytic confusion as to whether or not class-wide preliminary relief can be ordered in absence of a certified class (or even a pending certification request).

Who cares?

The attorney general for whom I work signed on to an amicus brief in favor of the federal government’s position in these cases. Obviously, I am pleased that the Supreme Court granted a partial stay. So it’s reasonable to ask why I am nitpicking at the stay opinion.

The answer is that these two cases involve a number of extremely serious legal issues that, if decided on the merits, will likely establish novel precedents for areas that have nothing to do with immigration and for cases that are far removed from President Donald Trump’s, or any president’s, executive orders. These issues may include: whether standing can be established (at least for purposes of claims based on the religion clauses) for entirely dignitary harms; whether a nefarious motive to harm one particular group – if such a motive exists – invalidates a law even if the law is neutral both on its face and in its effects; whether a revised law can ever be sufficiently attenuated from a once nefarious motive to survive constitutional challenge; and what information courts may reliably look to in determining whether a law or lawmaker has a secret or openly nefarious motive.

These issues are hot topics in a variety of areas at play in lower courts today – including redistricting cases, voter ID cases and discrimination cases. Accordingly, it is of the utmost importance that the Supreme Court not let the “hard case” of the travel ban/pause lead to “bad law” that risks infecting lower-court jurisprudence for years to come.