Ketanji Brown Jackson Presses Attorney About Universal Injunctions In Birthright Citizenship Case

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During Thursday's Supreme Court oral arguments, Justice Ketanji Brown Jackson questioned an attorney about universal injunctions.

Transcript

00:00actions we've seen over the last few years, administrations.

00:03Justice Barrett?

00:04Mr. Quirk, and I just have one question.

00:05You said that you're in bucket one, so you felt like you were playing kind of the amici role.

00:10I understand why you might think you're in bucket one for the associational point.

00:13Do you think you're in bucket one for individual plaintiffs?

00:17So I don't know that I would extract them because the...

00:20Well, named plaintiffs.

00:21Like, let's imagine you had individual plaintiffs that are named members of the association.

00:24So I guess what I'm saying is let's take the association outside of it

00:27and let's just say that we're talking about individual plaintiffs.

00:30Would you put that in bucket one?

00:31So there I would go to the second injury I had identified earlier,

00:35which is if you're asking...

00:36Our individual plaintiffs have pseudonames right now.

00:38That would be contemplating a scenario where they would have to identify themselves

00:44to the federal government and say,

00:46I am the plaintiff in this case,

00:50at which point they are immediately vulnerable to deportation.

00:53Even again, if they're here lawfully,

00:54we've seen the government removing visa holders and asylum seekers.

00:58Mrs. Jackson?

01:00So I think I understand your argument.

01:02There's just one little piece of it that is confusing to me,

01:05and I hope you can clarify.

01:07So if we view the relief in this case and others like it

01:11to be a judgment ordering the defendant not to do something

01:16that the court has found to be likely,

01:18because we're in the interim stage, unlawful,

01:21are non-parties in that situation actually getting relief,

01:28or are they just incidental beneficiaries of an order

01:32requiring the government not to do this harmful thing?

01:37I thought it was the latter.

01:39And that just, you know, the government is told by the court,

01:43don't do X.

01:43And of course, anybody who would have been harmed by the government doing X

01:48is benefited by that,

01:50but they're not really, I thought, getting relief.

01:53But here's where I get confused,

01:55because I thought they're not getting relief

01:57because they can't come into court independently

02:01and seek a contempt ruling

02:05if the government continues to do the thing.

02:07They weren't parties.

02:08They don't have the judgment.

02:09That's what differentiates them from, say, the class action people

02:14or the plaintiff people.

02:16The reason why we have the rules for class action, etc.,

02:18is because at the end of the day,

02:21the members of the class are getting a judgment

02:23that they can then use to enforce this obligation

02:29as against the government,

02:30whereas the people in the universal injunction world

02:34are just benefiting if the government actually, you know,

02:39follows the order.

02:40Yeah, I think that what you're articulating

02:42is consistent with a long history of precedent and practice.

02:47I mean, it's the classic Rem case, right,

02:49making a declaration about property.

02:51I think Professor Fander's amicus brief

02:53is really helpful on that.

02:54He talks about the patent laws.

02:56And I think you can see that same instinct

02:58in the court's cases

03:00that Justice Sotomayor was talking about earlier, right,

03:02the railroad rates, Barnett, Pierce v. Society of Sisters.

03:06And I guess my point is that's why we don't need Rule 23,

03:08because we're actually doing conceptually a different thing.

03:12We're not trying to give all these people,

03:14everyone in the world,

03:15some sort of enforceable right as against the government.

03:18We are simply just doing what courts do, I thought,

03:21which is telling the defendant

03:23over whom they have personal jurisdiction

03:24that they have to stop doing something unlawful.

03:27And of course that benefits people.

03:28But the thing that confuses me about your argument

03:31is that you alluded at the beginning to Rule 71

03:34and suggested that the non-parties

03:39could somehow enforce this universal injunction.

03:43I didn't understand.

03:44I think Rule 71 contemplates that.

03:46It would be very onerous.

03:47I mean, I think when General Sauer,

03:49he was kind of contemplating the idea that,

03:51you know, tens of thousands of people

03:53were going to have to come to court individually.

03:55Right.

03:55But I think if you're right about that,

03:56it undermines the point that I'm making.

03:58Because it puts people in the same place

04:01as the class action folks and the parties

04:04in a way that I think raises legitimate concerns

04:08that some of my colleagues have put forward

04:10with respect to universal injunctions.

04:12So the thing that distinguishes them

04:14is that universal injunctions are not benefiting

04:17or giving relief to non-parties

04:21in any meaningful sense, is my theory.

04:23I think both have always been true

04:25and maybe they're in tension to each other,

04:27but Rule 71 originated in Equity Rule X,

04:31which was enacted or was put in place in 1842,

04:34which had the same idea of quite apart

04:37from representative suits, non-parties enforcing

04:41orders that provided them with relief.

04:45Although maybe this, as I'm talking,

04:46I think maybe I'm talking about under Rule 71,

04:49orders that provide relief.

04:51But let me just ask you this.

04:51You're talking about injunctions.

04:52Yes, what I'm asking you is,

04:54in this very case, if we have a series of plaintiffs

04:59that have actually named people

05:00and they get an injunction, as the government says,

05:04against, sorry, if they get a universal injunction

05:07of what they call a universal injunction,

05:09the government cannot enforce this executive order.

05:13Can someone who is not a non-plaintiff come into court

05:18to enforce that if the government violates it?

05:22So I'm hesitant to say no, both because Rule 71 exists

05:26and those aren't my clients, are my plaintiffs,

05:29and we needed this universal injunction.

05:31Yes, I understand.

05:32I'm just trying to figure this out.

05:33But I think both what you said is true.

05:36If we look at cases like Barnett and Pierce

05:38and we go all the way back,

05:40I think Justice Story's dissent that he signed on to

05:43in Cherokee Nation v. Georgia is terrific on this point.

05:46He was the preeminent scholar on equitable remedies,

05:49and he certainly thought, in the way that you're articulating,

05:52we are going to make a declaration

05:53about whether Georgia can enforce its laws

05:57on Cherokee Nation property,

05:59and that is just a declaration of the law

06:00that will have an impact on everyone.

06:03But I'm hesitant to say that Rule 71

06:06doesn't have any application.

06:07Thank you, counsel.

06:09Rebuttal, General Sauer.

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