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Ketanji Brown Jackson Presses Attorney About Universal Injunctions In Birthright Citizenship Case
Forbes Breaking News
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5/16/2025
During Thursday's Supreme Court oral arguments, Justice Ketanji Brown Jackson questioned an attorney about universal injunctions.
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00:00
actions we've seen over the last few years, administrations.
00:03
Justice Barrett?
00:04
Mr. Quirk, and I just have one question.
00:05
You said that you're in bucket one, so you felt like you were playing kind of the amici role.
00:10
I understand why you might think you're in bucket one for the associational point.
00:13
Do you think you're in bucket one for individual plaintiffs?
00:17
So I don't know that I would extract them because the...
00:20
Well, named plaintiffs.
00:21
Like, let's imagine you had individual plaintiffs that are named members of the association.
00:24
So I guess what I'm saying is let's take the association outside of it
00:27
and let's just say that we're talking about individual plaintiffs.
00:30
Would you put that in bucket one?
00:31
So there I would go to the second injury I had identified earlier,
00:35
which is if you're asking...
00:36
Our individual plaintiffs have pseudonames right now.
00:38
That would be contemplating a scenario where they would have to identify themselves
00:44
to the federal government and say,
00:46
I am the plaintiff in this case,
00:50
at which point they are immediately vulnerable to deportation.
00:53
Even again, if they're here lawfully,
00:54
we've seen the government removing visa holders and asylum seekers.
00:58
Mrs. Jackson?
01:00
So I think I understand your argument.
01:02
There's just one little piece of it that is confusing to me,
01:05
and I hope you can clarify.
01:07
So if we view the relief in this case and others like it
01:11
to be a judgment ordering the defendant not to do something
01:16
that the court has found to be likely,
01:18
because we're in the interim stage, unlawful,
01:21
are non-parties in that situation actually getting relief,
01:28
or are they just incidental beneficiaries of an order
01:32
requiring the government not to do this harmful thing?
01:37
I thought it was the latter.
01:39
And that just, you know, the government is told by the court,
01:43
don't do X.
01:43
And of course, anybody who would have been harmed by the government doing X
01:48
is benefited by that,
01:50
but they're not really, I thought, getting relief.
01:53
But here's where I get confused,
01:55
because I thought they're not getting relief
01:57
because they can't come into court independently
02:01
and seek a contempt ruling
02:05
if the government continues to do the thing.
02:07
They weren't parties.
02:08
They don't have the judgment.
02:09
That's what differentiates them from, say, the class action people
02:14
or the plaintiff people.
02:16
The reason why we have the rules for class action, etc.,
02:18
is because at the end of the day,
02:21
the members of the class are getting a judgment
02:23
that they can then use to enforce this obligation
02:29
as against the government,
02:30
whereas the people in the universal injunction world
02:34
are just benefiting if the government actually, you know,
02:39
follows the order.
02:40
Yeah, I think that what you're articulating
02:42
is consistent with a long history of precedent and practice.
02:47
I mean, it's the classic Rem case, right,
02:49
making a declaration about property.
02:51
I think Professor Fander's amicus brief
02:53
is really helpful on that.
02:54
He talks about the patent laws.
02:56
And I think you can see that same instinct
02:58
in the court's cases
03:00
that Justice Sotomayor was talking about earlier, right,
03:02
the railroad rates, Barnett, Pierce v. Society of Sisters.
03:06
And I guess my point is that's why we don't need Rule 23,
03:08
because we're actually doing conceptually a different thing.
03:12
We're not trying to give all these people,
03:14
everyone in the world,
03:15
some sort of enforceable right as against the government.
03:18
We are simply just doing what courts do, I thought,
03:21
which is telling the defendant
03:23
over whom they have personal jurisdiction
03:24
that they have to stop doing something unlawful.
03:27
And of course that benefits people.
03:28
But the thing that confuses me about your argument
03:31
is that you alluded at the beginning to Rule 71
03:34
and suggested that the non-parties
03:39
could somehow enforce this universal injunction.
03:43
I didn't understand.
03:44
I think Rule 71 contemplates that.
03:46
It would be very onerous.
03:47
I mean, I think when General Sauer,
03:49
he was kind of contemplating the idea that,
03:51
you know, tens of thousands of people
03:53
were going to have to come to court individually.
03:55
Right.
03:55
But I think if you're right about that,
03:56
it undermines the point that I'm making.
03:58
Because it puts people in the same place
04:01
as the class action folks and the parties
04:04
in a way that I think raises legitimate concerns
04:08
that some of my colleagues have put forward
04:10
with respect to universal injunctions.
04:12
So the thing that distinguishes them
04:14
is that universal injunctions are not benefiting
04:17
or giving relief to non-parties
04:21
in any meaningful sense, is my theory.
04:23
I think both have always been true
04:25
and maybe they're in tension to each other,
04:27
but Rule 71 originated in Equity Rule X,
04:31
which was enacted or was put in place in 1842,
04:34
which had the same idea of quite apart
04:37
from representative suits, non-parties enforcing
04:41
orders that provided them with relief.
04:45
Although maybe this, as I'm talking,
04:46
I think maybe I'm talking about under Rule 71,
04:49
orders that provide relief.
04:51
But let me just ask you this.
04:51
You're talking about injunctions.
04:52
Yes, what I'm asking you is,
04:54
in this very case, if we have a series of plaintiffs
04:59
that have actually named people
05:00
and they get an injunction, as the government says,
05:04
against, sorry, if they get a universal injunction
05:07
of what they call a universal injunction,
05:09
the government cannot enforce this executive order.
05:13
Can someone who is not a non-plaintiff come into court
05:18
to enforce that if the government violates it?
05:22
So I'm hesitant to say no, both because Rule 71 exists
05:26
and those aren't my clients, are my plaintiffs,
05:29
and we needed this universal injunction.
05:31
Yes, I understand.
05:32
I'm just trying to figure this out.
05:33
But I think both what you said is true.
05:36
If we look at cases like Barnett and Pierce
05:38
and we go all the way back,
05:40
I think Justice Story's dissent that he signed on to
05:43
in Cherokee Nation v. Georgia is terrific on this point.
05:46
He was the preeminent scholar on equitable remedies,
05:49
and he certainly thought, in the way that you're articulating,
05:52
we are going to make a declaration
05:53
about whether Georgia can enforce its laws
05:57
on Cherokee Nation property,
05:59
and that is just a declaration of the law
06:00
that will have an impact on everyone.
06:03
But I'm hesitant to say that Rule 71
06:06
doesn't have any application.
06:07
Thank you, counsel.
06:09
Rebuttal, General Sauer.
Recommended
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