Thread by @ProfMJCleveland

THREAD on broad thoughts from hearing: My "gut" is that SCOTUS will follow what I call the Kavanaugh approach to nationwide injunctions and hold that there are rules & those must be followed and those rules require class certification to provide relief beyond Plaintiffs. 1/

https://twitter.com/ProfMJCleveland/status/1923013681249415617

2/ Justice Kavanaugh (echoed by several other justices) stressed that exigent circumstances purportedly justifying nationwide injunctions don't exist because courts can grant TRO/Preliminary Injunctions for putative classes (meaning class action lawsuits not yet certified).

3/ Given that reality, Justice Kavanaugh suggested the argument that we need nationwide injunctions collapses. And as he stressed couple times, there is a rule & those rules must be followed. If you listened to the argument, Justice Kavanaugh's approach came off balanced & sane.

4/ Of course, merely prediction & I could be wrong. But I'd add while argument may not have seemed to go well for gov. b/c justices (including originalist) were trying to box in Trump Ad. to understand position, I don't think that will change decision on nationwide injunction.

5/ For instance, Trump Adm. refused to say you could have a class action in this case, which seemed unsettling to some of justices, but that remedy shouldn't matter on question of whether you can have nationwide injunctions & the originalist know that.

6/ Trump Administration also refused to agree to follow circuit precedent in every situation, which ruffled feathers but again, doesn't matter from perspective of whether nationwide injunctions are permissible under either statute that gave jurisdiction in equity or Art. III.

7/ The Left side of Court also raised concerns over what they perceived as Trump violating clearly established precedent, which of course it isn't, but beyond that Trump Administration unequivocally stated it would abide by SCOTUS decision on merits even if not in class action.

8/ From the argument, it might also have seemed as if SCOTUS would decide to consider merits first, but I do not believe a majority will do so because the Court granted application on narrow question of nationwide injunctions & this case presents clearest vehicle to do so.

9/ So bottom line is I believe SCOTUS will hold no jurisdiction to enter nationwide injunctions under federal statute that establishes jurisdiction of lower courts. I believe they will avoid whether Article III would allow Congress to grant such authority to lower courts.

10/ The other option is to narrow nationwide injunction's use, which is possible, but I don't think a majority will go this approach because the lower court's don't seem to take the hint and a bright line is more practical. The remaining issue, though, remedy to states.

11/ In case of States suing, my understanding is it wasn't technically a nationwide injunction but rather a remedy supposedly gears to provide complete relief to the States. SCOTUS could remand that with guidance of what type of remedy is allowed for a State.

12/12 Two final points: We already have had 5 justices criticize nationwide injunctions, which IMNSHO will trump any concern over Trump. And finally, as several justices noted, eliminating nationwide injunctions isn't going to address problem of what district judges are doing.