Universal Injunction and Justice Sotomayor

Justice Sotomayor used to be the least talented Justice on the Supreme Court. Ketanji Brown Jackson said, “Hold my beer!” and took that title.

During the oral arguments, Sotomayor asked:

When a case is opened, the plaintiffs can make a motion for a temporary restraining order. This is another name for an injunction. A TRO should last no more than a couple of weeks, should maintain the status quo and should not grant final outcomes. Sorry for the poor English.

Thus, a TRO might stay an execution. This is the current status, so no change, maintaining the status quo. This is within the normal understanding of a TRO.

The TRO should not release the prisoner. That is a final outcome. That might be what the plaintiff is requesting, to be set free. That is what the final judgment would or would not grant.

In some cases, the plaintiff can be ordered to provide a bond before the TRO is issued. For example, the plaintiffs want the state to payout $2 billion as part of the TRO. They can be ordered to post a $2 billion bond before the defendants are required to pay out the $2 billion.

By the end of the TRO, the arguments for and against a preliminary injunction should be fully briefed. If there are any oral arguments to be made, those will have also been made.

The judge will then issue a preliminary injunction/stay as the TRO lapses, or will not issue the preliminary injunction/stay, which means the TRO lapses and nothing takes it place.

In general, TROs and Preliminary Injunctions are only granted to the parties of the case. The judge can issue a TRO blocking the execution of prisoner A, but unless prisoner B is also a party to the suit, the TRO does not apply to them.

If the case is a class action suit, once the class is granted, then orders of the court apply to the entire class. If the parties are an organization, the injunctions might apply to all members of the organization.

So what happens in Sotomayor’s hypothetical if there are no universal injunctions?

First, I don’t believe that we are going to have a situation where there are no universal injunctions. I believe that Sotomayor is correct, we need to preserve that capability for the judiciary.

What I believe would actually happen is that a true universal TRO would be issued. This would have a limited lift time.

Blocking the deportation of TdA for two weeks is a pain, but not unbearable. Blocking the deportation of TdA for the duration of a drawn out court case is unacceptable.

Blocking the confiscation of guns for two weeks for everybody is just as bearable.

This would give the inferior court time to certify the class, if such was needed, and to do a proper evaluation of the request for a preliminary injunction.

As the Supreme Court said in A.A.R.P v. Trump, the inferior courts MUST answer the merits question of the Winter factors. They cannot side step this.

In the case of TdA, the government will win on the merits. They have been granted the authority to remove criminal aliens from the United States by the Constitution and Congress. The most that might be justified is the process might require enough time for an attorney to become involved.

In the case of a gun confiscation, the plain text of the Second Amendment would be implicated. There is no way around that. There is no regulation in this Nation’s history of arms regulation that is analogous to an outright gun confiscation. The People are likely to win on the merits. Having a Constitutionally Protected right violated is unrepairable harm. The balance of equities lies with The People who have been harmed. Being denied your rights outweighs any state harm. The public has no interest in upholding an Unconstitutional Law or Regulation.

For the Circuit courts that would suddenly find that the Right to Keep and Bear Arms only applies to Nerf guns would cause a nearly instant circuit split, which would get appealed to the Supreme Court.

In addition, it would be physically difficult to confiscate all guns.