There now appears to be consensus at the Court that it may issue injunctions not only when claims are “indisputably clear,” but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable.
Indeed, it is fair to say that every sitting justice has recently voted for at least one “anti-precedential injunction,” that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that “newly minted rights . . . cannot justify an emergency injunction pending appeal.”
This controversy resembles debates over many other “clarity doctrines.” There are two basic ways forward:
1. The Court could decide that the applicable standard is fundamentally a measure of each voting justice’s confidence. The justices must be adequately certain that the claim is correct, or that the lower court erred in denying it. By analogy, consider a complex math puzzle. Even if most people—or most experts—get the puzzle wrong, an especially talented mathematician might know (or believe that she knows) the answer with complete confidence. True, focusing on internal confidence would be in tension with the “indisputably clear” standard that is often invoked in this area, given that phrase’s apparent focus on what can in fact be “disputed.” But perhaps it is time that that phrase be retired.
This approach would make room for Court injunctions that are contrary to Court precedent. If five justices are certain of the right answer, they may be equally certain that they would vote to overrule any contrary case law. To illustrate this point, consider Justice Thomas’s avowed willingness to overrule precedent that is “demonstrably erroneous.” If a justice is entirely certain that relief is proper on the merits, then any contrary precedent would be “demonstrably erroneous” and therefore (for Thomas) no precedential obstacle. On this view, the Court’s injunction would likely qualify as precedential, at least as a “signal,” even if not at the level of a precedent issued after the deliberative benefits of plenary review.
One might reasonably worry that this approach would render the Court one of first view, leading to all manner of Court-issued injunctions as well as overly hasty and erroneous precedents. But, to some extent, those outcomes are already taking place, and the legal standard should at least reflect reality. Further, the requirement of extreme confidence on the part of the voting justice would preserve a significant limit on the availability of Court injunctions. Litigants could not obtain injunctions based on disputed facts or legal issues that the justices cannot immediately and confidently answer.
Of course, many opportunities for Court injunctions would remain—particularly in our polarized legal culture. Today, perhaps more than in the past, Court majorities will feel instantly certain about legal propositions that lower courts have treated as dubious or simply incorrect. That polarization may help explain why the “indisputably clear” standard has either gone by the wayside or else been deemed met in hotly disputed cases. And if polarization is the problem, then we cannot expect any formal legal standard to be a pat solution.
2. Alternatively, the Court could commit to viewing the applicable standard as an inquiry into the state of the law as viewed by some imagined third-party. The claim for relief might have to be indisputably clear from the standpoint of, say, a lower court judge who is bound to apply extant case law. This approach would be prediction-based, in the sense that each justice would assess, not her own confidence, but rather her prediction of how confident someone else would be. The “indisputably clear” standard might have originated in a similar thought: when a single justice considers whether to issue an in-chambers injunction, he should think about whether his colleagues would dispute that relief.
Under this approach, anti-precedential injunctions can, and probably would, be prohibited. By way of analogy, the Court has adopted a prediction-based clarity test within the doctrine of qualified immunity. That doctrine places a premium on existing precedent and imagines how an official might understand case law. Again, a similar analysis might apply as to Court injunctions, substituting the official with a lower-court judge. A ruling that applied this kind of standard would generally set precedent only on the state of existing case law, not on how to extend those precedents or whether they are correct. A grant of relief might then be understood only as a protective measure to safeguard rights under existing doctrine.
This approach is also susceptible to legislative implementation. Borrowing a page from habeas corpus legislation, Congress could require that any Court injunctions issue if, or only if, the lower court’s denial “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(2). Whether adopted by Congress or the Court on its own initiative, that solution would tether injunctive relief to a familiar form of predictive clarity.
The problem here is that all the justices would at least sometimes be sorely tempted to break the rule to make room for doctrinal innovation. And that instinct is justifiable. Existing case law may not account for a new, startling reality. Or the justices’ views on a legal question might be out of step with older rulings. The Court’s role is, in part, to meet those novel or unanticipated problems. Those points help explain, and may justify, the justices’ apparent consensus on the availability of anti-precedential injunctions. Here again, increasing legal polarization matters: the hypothetical possibility of an anti-precedential injunction would not fatally undermine the prediction-based approach, but a succession of those injunctions would, returning us to the first option above.
* * *
Of course, there are additional considerations and approaches. We could imagine a special voting rule for Court-issued injunctions. Or the Court could formally disavow the “indisputably clear” standard in favor of a rule of perfect discretion, somewhat like certiorari. And other factors for granting injunctions can qualify or even outweigh the merits-based inquiry.
But the choice between certainty and predictability would continue to matter. If we care about the certainty of voting justices, then we might set a simple-majority voting rule, whereas a concern for predictability might support a super-majority or even unanimous voting rule. Adopting a rule of discretion would only move debates about certainty and predictability off the page, without eliminating them. And the other injunction factors, too, may be affected by the appropriate way to evaluate claims on the merits.