by Jim Quinn, The Burning Platform:
US Supreme Court Justice Anthony Kennedy made headlines when he decided to step down from the court after its final decisions of 2018 were announced. President Trump weighed in on who might replace Kennedy, and when…
…but lost in Kennedy’s retirement news and the SCOTUS decisions was the direction the court took when rebutting the appeals courts. Justice Kennedy himself took the state of California to task when the court struck down a California law on pregnancy crisis centers and abortion information:
— Donald J. Trump (@realDonaldTrump) 27 June 2018
The high court struck down California’s law requiring all pregnancy crisis centers post information on abortion in their facilities, which was challenged on behalf of centers owned and operated by those who oppose abortion.
While Supreme Court Justice Clarence Thomas wrote the decision which was handed down, Justice Anthony Kennedy (often considered a “swing vote” on the 9 person court which holds 4 reliable liberal votes and 4 mostly reliable conservative votes) wrote in his concurring decision a scathing rebuttal to the State of California offering its own “congratulatory statement” of a “legacy of ‘forward thinking’” as part of the state’s official history.
Kennedy wrote in his concurring decision, “it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] find unacceptable.” Kennedy then added,” It is forward thinking to begin by reading the First Amendment…understand the history of authoritarian governments as the Founders then knew it…how relentless authoritarian regimes are in their attempts to stifle free speech.”
And in striking down a Ninth Circuit ruling against President Trump’s travel ban, Justice Clarence Thomas directly took on the practice of the California-based appeals circuit’s “activist rulings” – and effectively threatened the court’s practice of such conduct:
Justice Thomas concurs in Trump v. Hawaii to throw cold water on growing practice of district courts imposing nationwide injunctions and says “[i]f their popularity continues, this Court must address their legality.”. pic.twitter.com/fKqwsTryWo
— John Elwood (@johnpelwood) 26 June 2018
Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common.
District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.
I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.
The irony of this should not be lost on anyone – liberal judges, angered with Trump’s executive actions (and ignorant of the fact that Obama wielded executive authority in an even more heavy-handed manner), have impulsively used activist rulings to circumvent executive authority. However, their actions will likely only lead to SCOTUS codifying even more power in the executive branch.