Academic highlight: Sohoni on the “lost history” of nationwide injunctions

In his concurrence in the 2018 Supreme Court decision upholding President Donald Trump’s travel ban, Trump v. Hawaii, Justice Clarence Thomas criticized the courts below for issuing injunctions that barred the administration from enforcing the ban against anyone, rather than only against the parties to the lawsuit. Thomas suggested that such absent-party injunctions—typically referred to as “nationwide injunctions” or “universal injunctions”—are constitutionally suspect. Citing legal scholarship, he argued that such injunctions were “a recent development … emerging for the first time in the 1960s, and dramatically increasing in popularity only recently.” Thomas’ concurrence echoed legal scholars, as well as declarations by former Attorney General Jeff Sessions and members of Congress, all of whom also described nationwide injunctions as a recent innovation that was beyond the federal courts’ historic powers under Article III of the Constitution.

Now a forthcoming article in the Harvard Law Review challenges the assumption that universal injunctions are a recent judicial invention. In “The Lost History of the ‘Universal’ Injunction,” Professor Mila Sohoni marshals evidence showing that such injunctions have a century-plus pedigree, and argues that federal courts have well-established constitutional authority to issue injunctions affecting nonparties. (Full disclosure: I have written an article defending nationwide injunctions, as well as a SCOTUSblog post summarizing the scholarship on both sides of the issue.)

Sohoni traces the historical roots of nationwide injunctions to the beginning of the 20th century. Although at least one scholar claimed that the first universal injunction was issued in 1963 in Wirz v. Baldor Electric Company, Sohoni argues that courts have been issuing such injunctions since at least 1913, when the Supreme Court granted a universal injunction in Journal of Commerce v. Burleson, later consolidated with Lewis Publishing v. Morgan.

Sohoni further explains that three-judge district courts frequently issued such injunctions in the first half of the 20th century, including in some of the best-known constitutional cases of that era. For example, the Supreme Court affirmed a universal injunction in Pierce v. Society of Sisters, holding that an Oregon law that made public school attendance compulsory was unconstitutional. And in West Virginia Board of Education v. Barnette, the court affirmed a three-judge district court’s injunction that shielded not only the plaintiff class of Jehovah’s Witnesses, but also “any other children having religious scruples” from a West Virginia law mandating that public school students salute the flag.

In light of this “lost history,” Sohoni claims that critics of nationwide injunctions have it backward. They argue that nationwide injunctions are constitutionally suspect, citing the lack of historical precedent for such injunctions to support that claim. But Sohoni contends that in fact the converse is true: The federal courts’ 107-year history of granting injunctions affecting nonparties suggests that “it would be a sharp departure from precedent and practice” to bar them from doing so in the future.

Sohoni’s article has inspired an impassioned response from Professor Samuel Bray, a leading critic of nationwide injunctions. Bray questions the case law cited by Sohoni, arguing that she omitted important context in her description of the injunctions in those cases. In an equally blunt reply, Sohoni defends her research and outlines flaws in Bray’s reading of the case law. As these dueling blog posts suggest, the debate over the provenance of nationwide injunctions is far from over.