Advisory Opinions - Second Amendment v. Ghost Gun Ban

Episode Date: March 27, 2025

Sarah Isgur and David French discuss the Supreme Court’s ruling to uphold the the ban on ghost guns. Is it really about the Second Amendment? Sarah and David are then joined by Gregg Costa—partner at Gibson Dunn and former Fifth Circuit judge—to explain the issue with universal injunctions and forum shopping. The Agenda: —I ain’t afraid of no ghost (gun) —A big week for Justice Neil Gorsuch —Mens rea and regulation —False vs. misleading —$660 million, baby —Judiciary is politicized —Administrative Procedure Act and universal injunctions —Predicting SCOTUS outcomes Show Notes: —Gregg Costa's podcast: A View from the Bench Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French, and we have an incredible special guest coming up for you. The return of former Fifth Circuit Judge Greg Costa to the podcast to talk about universal injunctions, the good, the bad, and the ugly. But first, David, we have some Supreme Court decisions that we should talk about. Yes, yes. One in particular, well, there's two that are fun. One in particular I'm super interested in,

the ghost gun case, but two that are worth it. Okay, let's then start with the ghost gun case. David, what's a ghost gun? Yeah, that's a really good question. So essentially what you're talking about, again, standard disclaimer when talking about guns, some of you guys are more expert than me on terminology, so please grace in the comments.

But a ghost gun is typically when you're talking about creating a gun, usually homemade, in other words, or at least you're using parts gathered from somewhere, creating a gun that doesn't have a serial number, for example, that is, it's like a ghost. It's a gun that exists in the world, but as far as is there any way of tracking it, discovering who owns it, who purchased it, et cetera,

et cetera, that's the ghostly element. And these are often guns that can be created, say, with 3D printers or easily assembled from kits. And in some ways, one of the reasons why ghost guns are particular, there's a particular alarm about them is that depending on the regulatory environment, these are guns that can be sold, put together, constructed, in a manner that evades, for example, background check requirements.

And so this case is about, in essence, what is a weapon? Because if you have a weapon, the weapon is encompassed within relevant federal statutes that make the gun less ghostly. And so the question became, wait a minute, when do you have a gun? In other words, when do you have an actual firearm? And what state of disrepair does an object have to be before it is not a firearm any longer, but not a weapon any longer. And so that is the core question in the case.

Very interesting. I've got like two to three thoughts on it, Sarah, but I'll just start with one. This isn't really a second amendment case. So we just need to, we need to realize that. This is not a second amendment case. This is much more a straightforward statutory interpretation case. So we just need to, we need to realize that this is not a second amendment case. This is much more a straightforward statutory interpretation case. But I do think it is indicative of something interesting in the gun arena, which is if you're looking at modern

court, and by modern, I mean, post heller Supreme Court jurisprudence on guns, you really are not seeing what I would call a strong sort of pro-gun rights tilt in the specific, in the abstract you do, but not in the specifics. And I think that might be worth coming back to a bit in this discussion. So this was a 7-2 decision. Justice Gorsuch wrote the decision, which I found pretty surprising. Robert Sotomayor, Kagan, Kavanaugh, Barrett, Jackson joined. Sotomayor, Kavanaugh, and Jackson each filed their own concurring opinions. And then Thomas and Alito were dissenting, wrote separate dissents though, and for very different reasons. In many ways, this was a 8-1 decision, David.

Thomas is the only one dissenting on the merits, so to speak. Alito's going to dissent on basically like, what is a facial challenge? Yeah, right. But not on whether these easily assemblable kits constitute a frame under the congressional language in the statute. So in that sense, it's 8-1, but technically this is a 7-2 opinion. So David, can you just walk through what the majority was saying here in terms of why this was a statutory case, why it passes before we get to sort of the larger things. What you have is a statutory just a statutory definition of of what a firearm can be.

And so it will define any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive. So in a new rule, the ATF interpreted this language to embrace weapons parts kit. So that's the regulatory part on top of the statute that are designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of explosive. And so the question is, in essence, what meets this definition? And what's really important

about this case, and I think something worth talking about a bit, Sarah, is that this is a facial challenge. And so, this is not a challenge where somebody is coming in with a specific kind of kit and saying the specific kind of kit does or does not meet this definition. The facial challenge is saying that this definition is so deficient that it essentially doesn't have a constitutional application. And so this is a very interesting tactical question, Sarah. The Supreme Court has really been in the last couple of terms narrowing the way

it's gonna address these sort of facial challenges. It's been a side eyeing facial challenges a bit. So the facial challenge is sort of swinging for the fences. I want to get rid of this rule entirely. The as applied challenge is like trying to hit a single. I'm trying to get rid of this rule or prevent its application to my client in this specific situation. And it seems to me that what really was fatal here for the plaintiff's case was that it was this facial challenge, because as Gorsuch walks through in the majority opinion, he

walks through, as a matter of fact, how it can be very clearly and easily understood to apply to specific kinds of weapons kits that can be assembled very, very quickly by people with no real training in firearm manufacturing at all or no real training at all. And so therefore, while there might be edge cases and Gorsuch says, well, look, say there is a spectrum between, say, having like a steel girder. I mean, this isn't the example he uses, but just hang with me for a minute. There is a spectrum between just like a steel girder

and says fashion a gun out of a hunk of steel and an actual kit that comes pre-assembled, but with some key elements disassembled that you can quickly reassemble to make a functioning gun. That there might be edge cases in that spectrum from hunk of steel to actual firearm, but when you're dealing with many kinds of these actual gun kits, it's not that close a call. These are plainly, easily, readily assemblable within the plain meaning of the statute. And it's not that complicated of an opinion, Sarah.

It's, look, here's the rule. Here are some kits that meet the definition of the rule. We don't think there's really any, this is very clear and easy to understand in this context. And one last thing on this, Sarah, this is one of those opinions that has pictures. It has pictures. And isn't that, it's very interesting,

like it's just a half step away from the Judge Van Dyke video demonstration. It's very interesting to me that in this firearm context, visual aids seem to be pretty important. Yeah, and in the visual aid, in this case, one of them at least, is showing you what that receiver looks like, a functioning receiver, and then a receiver that you would get in the mail in this one specific kit, where you have to file down these two tiny little plastic

nubs, and then it's functioning. Yeah. And yeah, I found that actually pretty helpful. So a few notes here. One, as I mentioned, Justice Alito does dissent, but he's dissenting on kind of a technical point here. As he says, if I were satisfied that the basically facial test should control here, I would join the opinion of the court. The court points to a gun kit

that is all but assembled and a frame that is as close to completion as possible. As applies to those extreme situations the court holds, and I agree, the rule does not deviate from the statute. But I am not certain that this facial challenge test should govern. Respondent's petition for review in this case claimed, among other things, that the ATF rule goes

beyond what the Gun Control Act permits and that it should therefore be, quote, set aside under the Administrative Procedures Act. In the Fifth Circuit and other courts of appeals, that provision has long been understood to permit a court to hold that a rule is invalid in Toto. I am also confused, David. I thought this was an APA case, in which case this is what APA cases are. You invalidate the whole regulation. I mean, think the bump stocks case. Right.

In many ways, this looks exactly like the bump stocks case. Of course, in the bump stocks case, the court held that no, the ATF could not create a new criminal law to criminalize bump stocks. And in this case, they are saying, yes, actually, the ATF can criminalize ghost guns. So it's opposite results, but I don't understand why one is just an APA case, and this one's a facial challenge case. And there's Justice Alito hanging out by himself saying, I mean, he's not saying, I don't get this.

He seems to get it better than I do, but I'm saying I don't get it. So I'm gonna confess to some of my own confusion here. There is something going on with facial challenges right now, because if you go back to the NetChoice case... confusion here. There is something going on with facial challenges right now, because if you go back to the NetChoice case. Exactly. Yes. Facial challenge case. Court said you did facial challenges wrong, but then goes ahead and basically says, but you kind of got it right. Yeah.

You got the outcome right, but you did it wrong. Let me try to square the circle between Ghost Guns and this. Okay, here would be how I would distinguish Ghost Guns' case from this case. Ghost Guns' case is the underlying technology of the bump stock has been constant, and the administration's response to it has been variable. And so nothing changed with the gun, right? But the administration changed this interpretation of the statute. I think the defense here, why this would be different,

is that the guns changed. In other words, that there's this creation of this newer thing, this ghost gun technology. And then the question is, how does the new thing fit within the old thing, which ghost gun technology, and then the question is how does the new thing fit within the old thing, which is the statute? And so you promulgate a regulation that says it fits within the old thing. The new thing fits within the old thing for this reason. So I do think that that's an important difference.

If you're talking about an emerging technology and how does an emerging technology apply, how does a pre-existing statute apply to an emerging technology is a different thing from why does the pre-existing statute consistently change its meaning in response to the same technology depending on the president. Yeah so maybe another way of thinking about this, just to explain this isn't another way, this facial challenge is to Congress's statute. Right. The APA challenges to the executive branch's regulation based on that statute. And so the question really is like, well, if it's an APA challenge like in bump stocks,

you're saying Congress, of course, can regulate machine guns. But this regulation that the executive branch promulgated, criminalizing bump stocks, as you say, David, the statute never changed, but then the regulations said it wasn't a problem, then it is a problem. There's your APA challenge. In this case, again, you could say the regulation to ghost guns from the ATF violates the APA. Or you could say that Congress can't, the statute just doesn't cover ghost guns, basically. Those are pretty similar, but I take your point that it's the technological change,

maybe? Anyway. Yeah, it's, it, I would just say I have sympathy for Justice Alito's befuddlement. The other interesting concurrence to point out, you know, you noticed it was Sotomayor, Jackson and Kavanaugh, you can get the K confused and think it's Kagan, but you know it's not a Kagan concurrence because Kagan doesn't write solo concurrences. I mean, once in a blue moon. So you have to like be like, wait, nope, can't be Kagan. Nope, this case it's Kavanaugh writing a separate concurrence and he's making this mens rehea point, which I think is pretty relevant in a facial challenge context when you're saying, look, there are clearly some ghost gun kits that fall under the statute that Congress passed and that can be regulated

because they are obviously firearms, you know, where you just have to file down this one thing. But they're not saying that all ghost guns are criminal. And in fact, the government did not say that either. All they're doing is upholding that in some cases, in the most extreme cases, absolutely you can prevent criminalized ghost guns. What about all the other ghost guns?

And where's that line? And the Supreme Court isn't telling you, and DOJ isn't telling you. What's the difference between an actual kit, a thing that comes in the mail that's a gun? I mean, as they, uh, Justice Gorsuch and his majority opinion points out, like at some point, a disassembled rifle that's used for transportation, like isn't a firearm according to these people? Like, no, you just have to put it together. Like here you have to put it together and file down a thing. Um, and Justice Kavanaugh and his concurrence is just pointing out the mens rea aspect of

this, that you have to knowingly, for the background check purposes, do this. Knowingly only implies that you knew you did the factual thing. It's a very low mens rea requirement. And he had oral argument asked Solicitor General Prelogger, okay, but given how muddy this is, can I have basically your word that y'all aren't gonna go out there and start willy-nilly arresting people? And she was like, that would be very unlikely.

And then for the other aspects of this, it will be a willingly requirement, which is that you not only have to know that you did the factual thing, you have to know that it was unlawful to do the factual thing So that was his concurrence. Otherwise David, you know, here's Gorsuch Upholding the ghost gun bit. I'm not saying this is like a little boss doc

But you know, if you think of it as a Second Amendment case, you're gonna be pissed So tell us why this is the Second Amendment in specific versus the Second Amendment in general jurisprudence of the court. Yeah. Well, one thing you're not seeing here is a Second Amendment analysis. You're seeing a statutory, this is a statutory interpretation, but a lot of folks sort of have this view of the court that like like it likes guns. So if they're conservative members, so this was some of this stuff around the bump stock ban case that, well, of course, this came out this way because the court likes gun rights. And so it was going to be allowing bump stocks to, it's going to set aside a bump stock ban. When we were sitting there jumping up and down saying, no, no, no, that was about regulatory,

that was about statutes and regulations, just about like this one, statutes and regulations where the second amendment really isn't in play. But what I would say is if you're looking at this, if you were a person who said the bump stock ban case is an indication of how the court likes guns, what do you have to say about the ghost gun case? Well, at the end of these two cases, you kind of have to say, well, the court's applying

a statutory methodology. It doesn't have a sort of inherent dispositionally pro-gun bias, right? And then that becomes doubly true when you look at the Brahimi combo. If you go from Heller to Bruin to Rahimi, what you see is between Heller and Bruin, a very basic bare bones ruling on the outcome that says I can have a gun in the house and I can keep a gun in the house and I can bear a weapon outside the house under certain limitations. That's it. That's it. And then when you started to get into the specifics with Rahimi, That's it. And then when you started to get into the specifics with Rahimi, the court deferred

to a gun control regime. And so I just think it is presumptuous for anyone on the right or left to sort of presume that this court is going to put its thumb on the scales, pro-gun rights, anti-gun rights, when I think the evidence is actually it's a lot more ambiguous about the specifics of regulating guns as opposed to the general abstraction of do you have the right in the abstract versus in the specifics how it's regulated. And I just don't think that the jurisprudence tells us it's particularly weighted one way or the other. the jurisprudence tells us it's particularly weighted one way or the other.

All right, David, let's talk about a couple of these other opinions quickly. We got the decision in that, is it false or is it just misleading case about the guy who took out the bank loan for $250,000 and then when they call him, he's like, just $110,000. And he's they call him, he's like, just 110,000. And he's like, well, technically, that's true. I did take out 110,000 and also more than that. It's misleading, but it's not false. The Supreme Court unanimously held that in fact, false and misleading are different. You must prove that the statements were false and remand it back to ensure that everyone agrees that in fact, those statements were definitely false. Of course, the jury in this case

was never given the out of misleading as two of the concurrences here point out filed by Alito and Jackson. Basically, don't worry, you have your strong textualist win. False is different than misleading. And you also have bad man stays in jail win because this was both false and misleading. And you also have bad man stays in jail win because this was both false and misleading. And the jury found it was false. So it's totally fine. There is this nice

line at the end, the chief justice wrote the decision. This just felt a little un-chief justice-y to me, David. In casual conversation, people use many overlapping words to describe shady statements. False, misleading, dishonest, deceptive, literally true and more. Only one of those words appears in the statute, section 1014 does not criminalize statements that are misleading, but true. Under the statute, it is not enough that a statement is misleading, it must be false. However, as you have from Justice Alito, considering whether a statement is false, judges and juries must view the statement in the context in which it is made.

In ordinary speech, we do not regard a statement as true or false based solely on the literal or semantic meaning of its words in isolation. Justice Alito, a big fan of the bad man stays in jail doctrine. BLAIR If anybody is, Justice Alito is the guy. JILL All right. The next up one, another bad man stays in jail. This is the guy who was part of the Genovese crime family, David,

where he was convicted of attempted murder under the violent crimes and aid of racketeering Vicar statute. And he challenged it, saying like, well, yeah, I definitely attempted to kill this guy and hire a bunch of other people to help me. And then it turned out it didn't really work out for us. And I'm, yes, part of the Genovese crime family. But as a crime of violence, this can't count

because New York law for this specific statute would also include a crime of omission. And he's like, therefore, it can't be a crime of violence if there are examples that could just be crimes of omission. The Supreme Court gnawed that one real hard. Justice Thomas writing for the majority with Roberts, Alito, Sotomayor, Kagan, Kavanaugh, Barrett. But it's 7-2, David.

You're going to have Gorsuch and Jackson together in dissent. We'll get to that in a second. Basically, they're like, yeah, yeah, look, a crime of omission is still a crime of violence. You're still acting by not acting, yada, yada, let's not worry about it too much. And that's the end of the majority. But David, where this gets interesting

is in the Gorsuch dissent joined by Justice Jackson. They are mind melding, David. I'm telling you our initial flag that you have Justice Gorsuch as the YOLO justice and that maybe he had found his soulmate on the other side of the ideological aisle. This is some Y-axis romance going on right now. X axis, they're far, far away. Y axis? So here's Justice Gorsuch, Justice Jackson joining. Imagine a lifeguard perched on his chair at the beach who spots a swimmer struggling against the waves. Instead of leaping into action,

the lifeguard chooses to settle back in his chair, twirl his whistle and watch the swimmer slip away. The lifeguard may know that his inaction will cause death. Perhaps the swimmer is the lifeguard's enemy and the lifeguard even wishes to see him die. Either way, the lifeguard is a bad man. In many states, he may be guilty of a serious crime for failing to fulfill his legal duty to help the swimmer. But does the lifeguard's offense also qualify as a crime of violence involving, quote, the use of physical force against the person of another? The court thinks so. I do not. It may reach many crimes, but it does not reach crimes of omission. And then David, you're going to really like how it ends. In the end, the court's decision today comes

up short on every count. It neglects definitional terms and their ordinary meaning. It ignores important contextual clues. It leans heavily on only two ultimately unhelpful precedents without addressing others, and it resorts to conjecture about implicit congressional purpose that is unconvincing on its own terms. To my mind, none of the court's arguments can overcome the hard fact that crimes of omission do not involve the use of physical force against another. Individuals like our lifeguard who commit offenses by omission may face punishment under many other criminal laws, but this one does not reach them. Even if a reasonable doubt remained about that common-sense conclusion, I confess I harbor none, the rule of lenity would require us to reach

the same result anyway. So you've got a two-free here David on the pile of evidence that Justice Gorsuch is like his own little satellite planet out there when it comes to criminal justice issues. It's construing statutes strictly against the government, and if that doesn't get him all the way, he'll call it a tie and rule of lenity it. So it's like the exact opposite of bad man stays in jail. Yep. Yep. That is Gorsuch, if Gorsuch listens to our podcast, hello justice, every time he hears us say bad man stays in jail, he probably throws something across the room. He probably agrees that that's the doctrine. He just doesn't agree with that doctrine because

it is not in the constitution. There's nothing in the Constitution that says, bad man stays in jail. I mean, and rule of lenity is 100% opposed to bad man stays in jail as a concept that, because the whole concept of bad man stays in jail is you resolve doubts in favor of incarceration. And the rule of lenity is you revolve doubts in favor of liberty. And so, yeah, I found his dissent pretty darn compelling and I have no particular love for the Genovese crime family.

But here's the problem with so many of these cases, David. The question is just the federal jurisdictional hook, really. As Justice Gorsuch said, you can arrest this person. You can throw them in jail for a really long time. The only question is whether it fits under this federal statute. Yeah. And I do think that's worth noting, but I've got one more Gorsuch for you, David.

Okay, let's go. A stay of execution was denied by the court and Justice Gorsuch dissented last week. This is not a bad man stays in jail issue, but you're gonna love it even more, David. The state of Louisiana plans to execute Jesse Hoffman tonight. Mr. Hoffman is a Buddhist,

and he argues that the state's chosen method of execution, nitrogen hypoxia, violates his rights under the Religious Land Use and Institutional Persons Act of 2000. We call it RLUPA. Nitrogen hypoxia will, he says, substantially burden his religious exercise by interfering with his meditative breathing as he dies. No one has questioned the sincerity of Mr. Hoffman's religious beliefs. Yet, the district court rejected his RLU claim anyway, based on its own, quote, finding about the kind of breathing Mr. Hoffman's faith requires. That finding contravened the fundamental principle that courts have, no license to declare whether an inherent has

correctly perceived the commands of his religion. The Court of Appeals failed to confront the district court's apparent legal error, or even to mention the Rillupa claim. Perhaps that claim ultimately lacks merit, but the Fifth Circuit's unexplained omission leaves this court poorly positioned to assess it. I would therefore grant the stay and petition for a writ of certiorari, vacate the judgment of the Fifth Circuit, and remand to that court to address the Rillupa claim in the first instance.

Big week for Gorsuch. A lot of Gorsuching happening. Yeah, absolutely. Absolutely. in the first instance. Big week for Gorsuch. A lot of Gorsuching happening. Yeah, absolutely, absolutely. This is, you know, I've told, I've said many times that if I was a, um, if I was a Supreme Court Justice, my name would be Neil Coney Bersich, because I'd be a hybrid of Amy Coney Barrett and Neil Gorsuch.

And these are the moments when the Neil Gorsuch side of me is most happy. Well, I, even this one, I think, has a little bad man stays in jail or reverse bad man stays in jail because I think a lot of the justices, particularly the conservative ones, are frustrated with death penalty jurisprudence

at the court and in the legal system, how long it takes, the number of meritless appeals, these last minute petitions. And so by the time it gets to them, I don't mean they don't take it seriously, they take it incredibly seriously. If things weren't briefed properly, if you've had a million bites at the apple,

that frustration and a spin-off of bad man stays in jail kind of takes over. And once again, you have Gorsuch just being like, nope, Leroy Jenkins. Nope. That's right. That is right. So I feel like we learned more about Justice Gorsuch as a justice in this week than maybe I've learned in like a year or more, actually. Oh, that's interesting. We should unpack that more on a future podcast because we've got

a whole discussion about universal injunctions to get to. Yes, we do. So let's bring in our special guest, former Fifth Circuit Judge, Greg Costa. It is the triumphant return of Greg Costa to advisory opinions. Now, Judge Costa, we only allowed triumphant returns when you've recently won at least a $600 million verdict in the past week. So do you feel qualified to be in this triumphant return? Perfect timing. Perfect timing. The only time I've had a $600 million plus verdict and I happen to be on the show this week. Well, and you just barely squeaked in through the threshold judge, like just barely.

What was the verdict? Like only a tad over 600 million? I mean, you're lucky. 60. 60. Oh, okay. Okay. So it's pretty comfortable, but you weren't even at 700.

So yeah. Well, look, that has to be a pretty, I mean, can you just give us a, sing us a few bars of what trial litigation is actually like and what it feels like to have a verdict returned with that many zeros on it? Yeah, well, let's just say that getting a $660 million verdict is a little more exciting. My old job, the excitement of the day was deciding whether to put an M dash or a semicolon in a sentence in an opinion. So this has been a lot more fun.

We had a great, great group of people. There was a case in North Dakota, jury trial involving the Dakota Access Pipeline. And so it was really for our client who built the pipeline. It was really vindication after years of being subject to a bunch of lies that had spread like wildfire. And going to a court of law where the truth, I'm still a believer that it's one place in our society where the truth still matters and the trial by jury is still the best way to find the truth. And it was incredibly satisfying to see that play out.

Well, just to refresh everyone's memory, you served on the Fifth Circuit Court of Appeals for a number of years. And as such, you have thoughts on this whole injunction mess, which is why we needed you to come back. Because you have thoughts on the problem, but, and this is important, you have thoughts on the solution. However, we can't get to the solution

until we get through the problem. So will you walk us through universal injunctions, nationwide injunctions, all the terminology, what's bad, what's good, what's ugly? Sure. And first, thanks for having me back. It's great to be a repeat guest. And for the record, I wanted to reflect that I was a guest on this podcast before you all were big time, before the New Yorker,

before David was a New York Times columnist. I mean, you were scrappy podcasters, upstarts, and I was with you from the beginning. But so now it's great to be back here now that you're big time as well. So you're right, as a judge on the Fifth Circuit, I was sort of there from the beginning because, you know, as we might talk about this modern phenomena of nationwide or universal injunctions, there was basically one at the end of George W. Bush's administration,

but it basically became a thing under President Obama. And it was largely a thing within the Fifth Circuit because conservative state attorney generals, in particular Texas, were bringing these where they thought they had favorable judges in the Fifth Circuit. I mean, just to tell you how much things have changed, I clerked for Chief Justice Rehnquist, I guess what, 23 years ago now? It seems like a long time, but it just wasn't something we ever encountered, right? The only emergency appeals that really came to the Supreme Court my year were death penalty

appeals. There was not a single stay application or motion to vacate a court of appeals stay during my clerkship with the chief. So what's changed in those 23 years? And basically, I think one feature of this is that state attorney generals started having the ability to sue the federal government more often, which we can talk about. And so it was, especially in the immigration context, suits were brought against Obama's immigration policies in Texas, as well as some environmental issues

and other things. And district courts started issuing, what were originally called nationwide injunctions, but I think that people now realize that's not the best name for them. What was different about these injunctions? I mean, there have been nationwide injunctions basically as long as there has been injunctions, right?

If you have a patent case and you're suing a software company saying they infringed your patent, and you're gonna ask for an injunction to stop that infringement, if you show you're entitled to that, the district court is gonna stop the defendant from infringing that patent

anywhere in the United States in most cases, right? It doesn't do much good to say, oh, just stop selling it in the Eastern District of Texas, which is a big area for patent litigation, but you can sell it everywhere else. So nationwide scope has always been a feature of injunctions when the injunctions were limited to the parties in that case, the infringer of the patent. What was really the new phenomena with the so-called nationwide injunctions was that Texas would bring a case against the Obama administration and a judge would say, I'm not just going to grant relief to Texas or say this just applies in Texas. I'm going to put this executive order on hold throughout the United States, affecting parties

who aren't involved in this case, affecting immigrants in Massachusetts, for example, even though we're sitting here in Texas and Massachusetts is not a party to this case. So I think the more common term has been universal injunctions, which describes the fact that it's just applying beyond the parties to the case. And that's what's unique about them. That's what I think is this recent phenomena. And I think we're now seeing, you know, at the end of the Biden administration, his Solicitor General asked the Supreme Court to end this practice.

And now certainly we're seeing many active voices on the right, including the administration's Department of Justice taking the same position. You know, it's interesting, Judge, as you walk through that history, it feels like there's so many different components to it or in so many different threads that we could pull on. And one of those threads is, I don't think it's any coincidence really that the increase of the request for universal injunctions or nationwide injunctions, spiked as Congress got less active. And so you begin to have more executive action that outside of the legal process,

was impossible to challenge, was impossible to deal with in the same way you can contest legislation as it's going through the process. You can oppose it as it's going through the process. You can oppose it as it's going through the process, but with executive action, here it is. Here it is. It comes down the pike and you've got a legal option, essentially. As a practical matter, that's the only option. It feels like that is a very big part of this as well.

I think that's exactly right. I think it's no coincidence that, I think by both number and also prominence, the nationwide, the universal injunction, see here I go calling it by the old name. I know. But these injunctions have been given the most attention in the area of immigration. And I think immigration is the area where most people think

Congress has really failed more than just about anything else anywhere else in the last 20 years. President Bush got reelected about 20 years ago. His big push was for immigration reform. It came somewhat close to happening, probably closer than it has at any time since. It didn't. And so after that, Obama tried to do the same thing, was unsuccessful. Then he does the DACA program, the DREAMers program, and similar programs, granting this broad relief to certain immigrants.

You're right, we say the injunction is a new phenomenon, which I think it is, but how active presidents have been with these executive orders is also a new development. I think no administration has been more active in its first couple months with executive orders than the current administration. Right. So it's, it's no surprise that when you have all these executive orders, when people out there think they're going beyond what the president's power is, that you're going to have lawsuits and people seeking these, these extraordinary remedies. Well, and it's also very, I think, helpful that you raised that there had been Democrats

who have been upset at the universal injunction. I had forgotten this, but I was working on my newsletter for today. And Schumer introduced legislation to try to deal with this towards the tail end of the Biden administration when the universal injunctions were flowing out of, you know, various more conservative judges. So if we have a memory longer than a goldfish, we know that there is, has been bipartisan alarm around this phenomenon. The apocrypha is galling, I think,

even for modern politics. You know, on both sides, I think most people, most lawyers recognize this as a problem. But when it's the Biden administration doing student loans, it's like, oh, that or vaccine mandates, it's, oh my God, I don't like this, but it's just these policies are so outrageous, a conservative would say that something needs to be done drastically in response. Now, of course, liberals are saying the same thing. And so people are all over the place on this. I do think, you know, you have judges.

It's interesting, mostly conservative judges have criticized it. Judge Sutton on the Sixth Circuit, Justice Thomas, Justice Gorsuch at the Supreme Court. I actually think it's more, I mean, who these really advantage are, are libertarians, right? As people challenging government action. Because I mean, one of the crazy things about it is the government can win 10 lawsuits challenging

an executive order, go 10 and 0, undefeated. There was actually on one of the vaccine challenges, I think it may have been to vaccine, that Biden's vaccine order just for federal employees. I think the federal government went 12 or 13 and oh and then one federal court in Texas sided with the challengers issued a nationwide injunction and that one judge overrode a dozen equal judges. Right. So I think it actually favors just people challenging the government, you know, whoever the government happens to be at the time. Okay, so we have this proliferation of executive power, therefore proliferation of executive actions,

a growth of the administrative state. And as y'all said, that's gonna then lead to more court time. And then you have this explosion of universal injunctions. I want to talk about two parts of that. One forum shopping and two associational standing. Because those seem to be the areas right for abuse. Because we've talked about different areas where people want universal injunctions, like the patent example is a good one.

It wouldn't do you any good to get an injunction just in the Eastern District of Texas. And there's going to be examples with executive orders that are kind of similar, where going out and getting 1,600 injunctions would be pretty annoying. But as you said, with that, you're 13 and 0, oh, well, you just haven't found the right judge yet. And so for me, the forum shopping is not only a problem for the efficient execution of government policies. I'm not sure efficiency is actually a virtue in government policies, but nevertheless, I think it actually breeds some contempt for the courts, which of course is what we're

seeing whenever the party in power is the brunt of these. When it's universal injunctions against eviction moratorium, student loan debt forgiveness, vaccine mandate, the conservative courts are out of control, these conservative judges. Now, of course, it's Republicans saying, these liberal judges who weren't elected to anything, the president is the only person who is there to speak for all Americans and here you have this one biased, prejudiced judge against Trump who's stopping him, like the Lilliputians trying to tie him down. You know, David and I can argue about

why that's not true and look at the statistics. But there is some truth to the fact that it does, I think, undermine the reputations, credibility and legitimacy of the courts. And it makes courts, it takes away the black robe, if you will. If the black robe is meant to make judges non-persons in some way, the forum shopping makes them very much people if you're always trying to go to Judge Casmeric or the Northern District of California. So that's really my biggest concern with the whole practice. I mean, there's the question, are they legitimate in and of themselves, which there's a lot of scholarly

debate on that, and I have views on that. But then even if they are authorized in certain, I think at most extreme situations, the question is this forum shopping problem. It really feeds what I think is a growing perception that the judiciary is politicized. Let me give you a startling statistic. In Trump's first term, 92% of the nationwide injunctions issued against his policies were from judges appointed by Democrats. In Biden's term, 100% of the injunctions, universal injunctions issued against his policies were

by Republican appointed judges. And you know, Chief Justice Roberts says there's no Obama judges, there's no Trump judges. I mean, aspirationally, he's correct. I certainly tried to, you know, be nonpartisan, nonpolitical as a judge. I know most of my colleagues did too, but it's hard to look at the simple facts. And it does look like people, it's Republican appointed judges in joining democratic administrations and vice versa. And look, I think there's 677 district court judgeships in the United States. And then there's even more judges than that

because people can take senior status and still sit on the bench. So you're probably talking about 800 or 900 district judges. The idea to me that one of them can enjoin a policy for across the board for all parties of a president who was democratically elected. I mean, it does raise real concerns, especially when you can almost single-hand,

you know, pick exactly who that judge out of state hundred is going to be, because there are districts where there is only one judge here in cases, or there are places like the Northern District of California where I think, well, over 90% are Democratic appointees. In the Northern District of Texas, there's the issue with these single judge divisions,

but just apart from that, I think there's only one Democratic appointee in the Northern District of Texas. So, smart lawyers can pick the right forum. That's good lawyer. I don't criticize them for doing it, but it's just combined with this incredibly broad power, it's really feeding the perception that the judiciary is political and it's unfortunate. Yeah, I mean, if you're a lawyer

and you have the ability to forum shop, it's almost malpractice not to. Can imagine going to your client, well, why did you file in the Northern District of California a lawsuit challenging this gun control provision? Well, I'm against forum shopping. No.

You just, your client's not gonna be down with that. So yeah, it's hard to blame the lawyers here. They're doing exactly what they need to do. But Judge, what would you say, because you've nailed down two problems, the picking and the power, the ability. If you combine the ability to pick your judge with the power of the judge, that's where you've got really the recipe for injustice and a recipe for really circumventing the

democratic process. Which one do you object to more or do you object to them both equally? Is it the picking that is the most problematic or is the power that is the most problematic? I think it's probably, well, I mean if you get rid of the power you don't have the other problem, right? So I think ultimately it is an issue of power but where I injected myself into this debate was with a proposal to do away at least in part with the picking or forum selection piece of it. Because to me, for people that are higher pay grade, the Supreme Court's going to decide whether there's equitable

power to do these types of remedies. Although interestingly, I think there's been a problem. Why hasn't the Supreme Court done that yet, even though people like Gorsuch and Thomas have decried the practice? The problem is once these cases get to the Supreme Court done that yet, even though people like Gorsuch and Thomas have decried the practice? The problem is once these cases get to the Supreme Court, say the student loan cases, well then if the remedy issue really doesn't need to be decided by the Supreme Court, because whatever the Supreme Court rules on student loans is going to affect all parties, all across the country by virtue of precedent. In other words, they don't need to issue an injunction.

If they said Biden's student loan program is unconstitutional, as they did, just as a matter of precedent, the issue is over. So it's really a problem in the lower courts. The Supreme Court certainly could just say in a particular case, well, this remedy is too broad, even if the actual merits were decided correctly. But I understand why it hasn't done so. The issue doesn't have to be decided by the time a case gets to the Supreme Court.

But on the forum selection issue, my proposal was to take something that used to be fairly common in the courts, which was that if you were going from about 1910 to 1975, if you were going to challenge a state statute as being unconstitutional, and then starting in the 1930s, it was actually a part of Roosevelt's failed court packing plan that did get passed, if you were going to challenge a federal law as being unconstitutional, you had to do it before a three-judge panel, right? It would be made up of two district judges, one court of appeals judge, and then it would go directly on appeal to the Supreme Court.

And the idea was, right, if a law is going to be held unconstitutional, which is a grave exercise of judicial power, that's a very serious thing for a court to say to override the democratic branches, that it at least would have the support of two, you know, multiple judges, maybe three if it was unanimous. The court, the Congress did away with that in the mid seventies because the Supreme Court was, it was really busy and there was manipulation of the jurisdictional rules. They kept it only for challenges to redistrict. Right. So have it. But my proposal is why don't we bring that back for people seeking these universal injunctions?

It would actually be the lawyer's choice. If you're representing an immigrant right now challenging Trump's plan to deport certain people to El Salvador to deport your client, and you just wanna get relief for your client, you can do the old fashioned forums shopping, pick any district in the country to file in, just like people who bring car wreck cases do.

But if your relief is, I don't want to just help my client who's about to be deported, but I want a ruling that this entire executive order cannot be enforced against anybody, then that would go to a three judge panel, which would not entirely eliminate but largely I think reduce the forum shopping problem. And then if the injunction were granted, you would have an automatic appeal to the Supreme

Court. Because the Supreme Court, 50 years ago when they ended this practice, I mean the Supreme Court was hearing about 200 cases a year. I think they're under a third of that these days. I think they have the time. Okay. So this would almost create a circuit-like panel right off the bat. And would those judges be randomly assigned, but in the division?

How would we get that? Where did the judges come from? So I think there's different ways to do it. And I should say, I proposed this in 2018. And since then, I mean, there's currently a proposal in Congress, a bill pending that proposes this type of plan. And, you know, people have chimed in with variations of what I proposed. I mean, here's how it works today for challenges to redistricting. You still file, you know, you can file it in Amarillo,

Texas or in Dallas or Galveston or Houston. It's assigned like any other case to one judge, just like you file the normal car wreck case. That district judge is on the case. Then the chief judge of the circuit, now Judge L. Roddick, for example, in the Fifth Circuit, she gets to select a circuit judge to put on that panel and another district judge from within, you usually would be within the same district, say the Southern District of Texas if you filed in Galveston, my old court. And so there is that power with the chief judge. And you know, then you're also going to get judges who are reflective of that circuit, right? So that's

why I think it doesn't entirely eliminate the forum shopping incentive. There are people who ask to make it more random and say, look, if you file one of these universal injunctions, you're seeking that in your relief, it would just be subject to a lottery basically. And there is actually a provision in certain challenges to administrative action that go right to the courts of appeals, a lottery system in place. That was some of the vaccine orders were subject to that lottery, I think ended up in the sixth circuit. So I think there's proposals that would make it

even more random. And look, if you're seeking that relief across the country, I would support that basically lottery. I mean, the one proposal that I can't stand is that all these should go to the courts in DC. That's what I was gonna ask. Who's gonna ask that too? The idea that all the wisdom is

within the District of Columbia, the confines of that small place is just appalling to me. Well, there's also the problem that all that's gonna do is make confirmation hearings and nominations for DC judgeships, all the more violent basically. And they already are because the DC circuit is seen as this stepping stone to the Supreme Court slash they get most of the administrative law cases. So there's already a heightened scrutiny, if you will, on DC nominations. So I agree

with you. I think that would be a big mistake. I also feel like with technology that we have post COVID, Zoom or otherwise, that picking three random judges who can convene, they don't have to fly out anywhere. It's not going to be a huge burden. It's an emergency hearing for emergency relief. You hop on Zoom for three random judges. And because the issue for me, whether the courts should have this equitable relief, let's set aside whether they do, is okay. But presidents are trying to expand their powers far beyond what is in Article 2, in my opinion. Because Article 1 isn't doing their jobs, like I've said, I mean, this is Congress's fault at the end of the day.

But we want some ability to stop presidents from just making themselves Congress. You saw an interesting order from President Trump this week, announcing new voting rules for across the country. What? That is definitely a legislative job. And so if presidents are going to, quote unquote, pass laws through executive orders, we probably need some way to deal with that.

But I do want to ask you the question of the alternative, which is, okay, what if we just totally got away with, went away from universal injunctions? So we're not going to fix the forum shopping problem. We're now just going to fix the power problem. You can only grant relief to the parties before you as a judge. What would be the effect of that? How bad would it be?

Well, it's basically the situation that existed for more than 200 years in our country and the Republic fared okay. The New Deal, I mean, everything that Congress passed during the New Deal was basically challenged by business interests. I noted in my blog piece in the Harvard Law Review back in 2018, which I don't know if I mentioned, I wrote that during the Trump administration. So I do try to be consistent on this. There was an aspect of the Agricultural Adjustment

Act that Roosevelt enacted where over 1,000 different injunctions issued against the same provision. So I get the concerns about inefficiency, because that's back in the day. You know, you had to be a particular farmer or a particular business who brought that challenge. Courts weren't going to just say, oh, this provision doesn't apply to any farmer in the country.

The system was able to do that. In a world where you didn't have word processing, you didn't have Westlaw, and judges were still able to decide those cases. I'm actually marvel at how lawyers and judges did things back then. But someone would say, look, that's not so efficient to have a thousand different cases brought across the country, but it did work back then. To me, I mean, you raise good points, Sarah, that, you know, who's going to counteract unlawful presidential exercises of power?

But to me, the issue with universal injunctions, it's more a question not of the power of the judiciary as a whole to counter the president or Congress. It's a question of who within the judiciary should have that power. And the problem here is giving one out of about 800 district judges that power. Because I'll give you another feature of how perverse these universal injunctions can be. Let's say you have just a normal case, again, an immigrant challenges Trump's order of deporting folks to El Salvador.

And it goes all the way, it goes up to the Second Circuit, and even on Bonk, the Second Circuit on Bonk says, well, no, this is permissible. We're gonna allow that. Well, then you have a district judge somewhere else in California issues a universal injunction against the practice. That district judge isn't just exercising. We talked before about how it can trump all these other district court decisions, but

there it's basically overriding an en banc group of circuit judges who made a decision. It's inverting the hierarchy of the judiciary. For serious challenges, look, these executive orders Trump is issuing that are being seriously challenged, the Supreme Court will take up most of them. I think the Supreme Court should take up a lot more of them. I don't think they take enough cases. And that's why I think this sort of proposal to bring back some mandatory Supreme Court jurisdiction means you're still going to get these issues decided. The judiciary will decide

whether the president exceeded his power, but it'll be done by the people in this judiciary who have the ultimate say within that branch. And I think you're also gonna produce better decisions decisions because, you know, the way the Supreme Court likes to review issues is get different judges looking at it, letting the issue percolate, seeing if circuit splits develop, et cetera. And then a universal injunction can thwart that whole process. You know, it strikes me that one of our tensions here as you're talking through this judge

is the question is who gets the benefit of the inherent delay of the legal system? Right, that's exactly, David, what I was thinking. It's like, well, these don't last forever. So we're just putting them on hold briefly. So who gets the benefit of that? Yeah. Right, exactly. So do you say with the universal injunctions

that the benefit of the delay goes to the plaintiff who's able to secure the injunction? Or does the benefit of the delay go to the president with carve-outs to the order as various injunctions are moving up the chain? And I think the thing I like about this idea of a menu option between going for a three-judge panel, and I actually do prefer it being one set of judges. I'm totally fine with it not being in Washington, maybe someplace that straddles North, South, East and West.

St. Louis, they're in St. Louis. And you have a choice between your three judge panel to go for the whole ball game, or you have a choice to go with an order that involves only your client. That seems to be a very fair way of dealing with this. Roll the dice for the universal injunction or go the safer route that's just going to help your individual client.

What's not to love there, Judge? Well, hey, that's why I came over. At the beginning, David, you should call me Greg. I'm now just a, not just a citizen. I like to, one of my favorite quotes is from Brandeis who says, the most important role in a democracy is that of citizen. So right, I mean, but that's if you have a client who has an urgent situation, they're about to be put on a plane tomorrow or today to be deported.

I certainly don't have any problem with someone going seeking an emergency TRO that happens all the time in business disputes and other types of issues in the courts. And if you can get relief for your client, because of that pressing time consideration, the court, that that's the court should should decide that motion in a timely manner that allows your client relief if he or she is going to win. But you know, the question then, but you know, it a lot of these cases aren't don't even have that time pressure where these, you know, injunctions are issuing, you know, orders, you know, increases of the minimum wage, orders, increases of the minimum wage, FLSA, Labor Department regulations, it's environmental regulations. Many of them don't even have that time component.

It's just judges thinking that the problem is so great that they need to stop the program for all parties everywhere. You know what, I just want real, just can I offer a lamentation Just for just for a moment. Let me let's pause this for a lamentation if we had a function in Congress right now This would be an ideal time for a political compromise that said hey look Both sides of the aisle have had their own beefs with universal injunctions

Let's step in right now and do something about that. And then at the same time, to offer something to Democrats who are right now, you know, universal injunctions are one of their last effective abilities of combating the administration, have elements that reaffirm, that enhance the penalties, say, for defying a court order, that, you know, that provides some sort of comfort that the judicial system is still intact and its power is still intact, feels to me like you've got the elements of a compromise right there, but we just can't even,

this is the lamentation part, why even, I just wasted my breath, I just wasted it. I don't know. Darrell Isis Bill might actually move in the House and go to the Senate. There might be quite a bit of pressure on both sides because this has been flipping back and forth so often. But okay, so here's what I'm hearing.

And I'm feeling pretty convinced that either you can pick your judge, you know, you can forum shop, but then you're limited to relief just against you. Or you can seek a universal injunction and then you're gonna go into this random pool, whatever, however we define random and I don't care too much about the details of that.

It doesn't sound like y'all do either that some amount of randomness would be good enough. But now we get to the next problem. You know, in that first category about the, you can only get relief against you, then it's going to matter who you is able to be defined as. And that's where we get the associational standing issue, where you have groups that sue.

And the group says they represent anyone who might be arrested for being associated with a Venezuelan gang. So they're like, I just want relief for me, my group called, maybe I'm in a Venezuelan gang tattoo fun time. And so if you give relief against that group and you acknowledge associational standing, this idea that a group can represent people who don't even know that they're members of the group. We just undid everything that we're trying to do here. So, fix that problem for me. Well, I think it gets at the root of the problem and why these things have proliferated.

I mean, Justice Gorsuch has said the problem with these universal injunctions is a standing problem because you should only have, a court should only be able to remedy the injury of the party in front of it right so like you said sir that's pretty obvious when you've got one immigrant you say okay that one immigrant gets a hearing or that one immigrant shouldn't be deported but what do you do when it's a a group on you know an association or also that it's a problem the litigant is the state, right? Texas challenging Biden or New York challenging Trump.

And the state asserts this broader interest that it is the sovereign interests that are being undermined by the president's order. I mean, Justice Thomas is wanting to get rid of associational standing. The court has cut back on, there's only two things, there's associational standing that a nonprofit or an interest group can bring, and then there's organizational standing. So the associational, I don't get two in the weeds

as a former federal. We like weeds. Do it, do it. This is the podcast for it. Yeah, I should note, I don't get, so you inspired me so much being on your show. I've now have in my own podcast With a colleague a partner at Gibson Dunn George Hazel who was a former federal judge in Maryland

It's called a view from the bench And we certainly I you know, I don't think we've risen to your levels. We don't have alpha Romeo ads I was listening to your podcast today and there was an alpha Must say something about the tax bracket of your But we were And there was an alpha and I must say something about the tax bracket of your Yes, we do have one One thing over y'all last summer our podcast was named one of the most beach worthy Legal podcast, I think more people are listening to ours, you know at the shore But that diversion, talking about associational standing and organizational standing.

So now we'll go back to the classroom. Associational standing is you represent a, your association itself is made up of individuals. And so instead of the, it can even be, you know, a group of technology companies who have these trade groups, right? And they want to challenge some law that's regulating social media or something. So you say, look, our members,

we have, you know, 200 members in this industry, and they are affected. To show standing, you say, our members' interests are affected. Therefore, we as a group can bring a claim to vindicate our members, our association's interest and rectify their injuries. And this, by the way, is important. The reason you see trade organizations do this is it fixes the belling the cat problem,

right? No single company wants to be the one out there with their brand to be attacked by the administration. But if the Association, National Association of Manufacturers or the Chamber of Commerce or things like that do it, it defrays the cost, literally, but also figuratively, the capital, if you will, across all of the associational members. Exactly. I mean, we have clients who we talk know, we talk to and they want to challenge

some policy, but they prefer to do it as you just explained through one of these associations. So that's one piece of it where there are actually, these are groups that have members who are directly affected. Now, even their judge, Justice Thomas, has questioned that. But then there's another aspect called an organizational standing, which is where the organization itself says it suffers an injury. And that has almost been eliminated. There's a case, I think, from the 70s called Haven's Realty where they were bringing fair housing challenges.

And they said, look, our testers, we test, we go around and see if apartment complexes are discriminating on the basis of race and the Supreme Court said oh Well, you know the fact that there's discrimination out there that is like it's a cost to your organization Because you're having to send these testers out there and it sort of depletes your resources, you know You could be out there advocating but instead you have to Fund these these people who go door-to-door testing landlords. So That theory though the Supreme Court a few

years ago really cabined it just to the fair housing aspect. So there, that's organizational standing is on its last legs. Associational standing is still a very thriving basis for getting into federal court, even though, like I said, Justice Thomas has questioned it. for getting into federal court, even though, like I said, Justice Thomas has questioned it. But that, you know, so the question there is, well, who should get the relief, if say the Chamber of Commerce brings a case, as it did bring a number of cases

against the Biden administration, for example. You know, that's where Justice Gorsuch would say, you know, maybe that the members you use to get standing, because you do have to identify which individual members are affected, you know, maybe it should be limited to those folks. But, you know, it also brings up another issue, which is, I think the best defense of the universal injunctions is that the Administrative Procedure Act called the APA has a provision that says unlawful regulations should be vacated. And so this vacated provision is what I think defenders of universal

injunctions most hang their hat on is that Congress has allowed it through the the APA. And I would say that it's the APA where the argument for the universal injunction is often at its strongest exactly because of that language. But- It's the language and the need, right? So many of these problems come from presidents using administrative agencies to expand their power. And so the APA is the perfect place for all of this.

It makes sense why it would have that set aside in vacatur language when other statutes don't blah, blah, blah. Like yay, APA universal injunctions, except for the forum shopping and the associational standing problems. There's one other piece of this, and you alluded to it, I think earlier, Sarah. So you have the question, like, what do you do when there's this executive order and it's affecting hundreds of thousands of people, and how do they all get to court, and how do they all get lawyers?

Class actions are a well-established procedure for getting relief beyond the person filing a lawsuit. And so, I mean, that's another aspect where people say, look, the problem with these universal injunctions is people aren't bringing them as class actions. Maybe if they did, that would be okay. And I should point out the Judge Boasberg order on the deportations to El Salvador. What he did, they sought an emergency TRO. He actually did, as part of the TRO, certify a class.

Now, whether that's... That's not, that's not the normal rigor that's applied into, you know, there's months of discovery and briefing and argument to decide if a class should be certified. But his is at least a class action. And I think some people said you should at least have to go through the class action procedures, which are, you know, have these, these limits and these, these, this rigor before seeking relief that is broader than just the single plaintiff. So, Judge, as we're walking forward on this, what is your sense? Because we've talked about legislative reforms and we've talked about ways that Congress can step in and do something.

What is your sense as to what the Supreme Court is thinking along these lines? Because it is not just that the efforts to deal with universal injunctions and form shopping are legislative. There's also been a concerted effort to persuade judges, don't do this. This should not happen.

Where do you see the Supreme Court going on this in the relatively near term? So this will be my bold prediction for the episode. You know, and I mentioned before why I think the Supreme Court has been able to avoid the issue and why it's really, it doesn't have to decide in these cases. All that being said, I think in 2025,

the Supreme Court is going to address this issue. You already have Thomas and Gorsuch dissenting on the issue or writing separately on it, notably under the Trump administration. I don't think they did that under Biden. I could be wrong. I think Barrett is very, very likely sympathetic to that position. She's just generally, if you look at her rulings in the area of standing, she is a big advocate of judicial restraint generally. So I would have to believe Barrett has these serious problems with this practice.

I would think that the chief does because he's also, he's seeing these concerns we talked about, about the politicization, about the forum shopping and what it's doing to the reputation of the courts, which is obviously often front and center for him. So that's four votes. You know, Kavanaugh. I don't know where Alito would be on it, but obviously I'm sure he's not liking the ones that are issuing now. He's written so much about the associational standing problems.

I mean, Alito's... And his point has been, I don't even care at this point. Can we just be consistent? And I think someone like Kagan, who takes the long view, again, these affect both sides. I actually think, this sort of goes to the congressional issue. You were talking about David and they're not going to be able to compromise it, even though they should, because they've both been affected by it. Taking the long view, which is not what politicians do, but, you know, I think this is a bigger problem

for Democrats than Republicans. Because going back to what I said earlier, it's what it really does is empower people challenging the government, right? It's a very, it helps libertarians who don't like government action of any sort, you know, generally. And more often than not, it's going to be democratic administrations that are, you know, implementing new programs, reforming things. Now, we's going to be democratic administrations that are implementing new programs, reforming things. Now, we just happen to be in an incredibly activist administration on the other side, right? And whatever else people want to say about this administration, it has been incredibly

active in issuing these orders. So I think that's coloring people's perception. But I think over the broader picture, it's Democrats who are using government to try and do things more often. Ah, okay. I like the long sigh. I think we've covered the waterfront here. So we've talked about the problems with the universal injunctions for the judiciary,

for the plaintiffs, for the government, the forum shopping issue, which you, for the government, the forum shopping issue, which you have a solution for, the associational standing issue, which we maybe don't have a solution for, but I don't know, fix one problem, see what pops up. I could, by the way, see the class action thing being its whole other mess. You know, it's like you squeeze a balloon and then like the air pops out the other way. I'm worried about the temporary restraining orders. If someone waved a magic wand and said,

no associational standing and no universal injunctions, all of a sudden we'd have TROs and class actions, and we'd be right back to where we are in just a few years. But I like your optimism about the Supreme Court taking this. I think you are right, although I think it is really hard to say why they haven't. They've known this problem. It's been increasing. Now it's exploded and is putting even more strain, I think, on the credibility and legitimacy issues of the judiciary. But boy, this feels like a problem that could have been headed off. Oh, a decade ago. Yeah, a while back.

Yeah. Exactly. But also given how much, you know, there's articles every day about Congress trying to do X, Y, and Z. I think that could influence the court to try to stop the problem itself. Okay, I have one last question for you. Do you ever miss being a judge? Probably not this week, Sarah.

Not this week. Hey, look, let's be clear, right? This thing's gonna go on appeal. You have to defend this judgment. It didn't hit your bank account this week. It's not hitting your bank account for a while, sir, before you go out and buy that Alfa Romeo. So, you know, it's funny. When I left the bench, the most common question I got was, you know, why did you leave?

And now the most common question I get is the one you just asked. I certainly miss things and I expected that. Every job I've ever left, I'm sure this is true for you, you miss certain things. I worked at the neighborhood movie theater in high school and I still miss getting to see the movies before everyone else. I still miss the free popcorn.

So I think you could go through every job I had. About the court, I miss certainly colleagues I had, including your former boss, Sarah, who was my next door neighbor, Judge Jones. I got in touch with her recently. I miss, there was something incredibly satisfying about solving a difficult legal problem and then you issued an opinion and that was going to be something judges and lawyers and even in some cases law students would look to for years to come. I mean, that was incredibly satisfying. And then I think of what a colleague used to say the two best things about being a federal

judge were no billable hours and the relationships with your law clerks. And so I'm still searching for a solution to the first one. Now that I'm in private practice, the billable hours issue. But the law clerks really is the best part of the job. But I've been somewhat able to get around that by four of my law clerks now work with me at Gibson Dunn. So that's been a tremendous joy of being in practice and continuing to get to work with them and then obviously developing relationships with the other younger lawyers at the firm.

It's been a lot of fun. It's different every day, but I do miss certain things. It was the honor of a lifetime to be part of our judiciary, which I think is so fundamental to our constitutional system. And I hope, I mean, one thing that did come, hopefully come through today is that I really do care about the courts. I really do care about the independence of the judiciary and the need for the judiciary to not be a political animal.

Because I've always, if it's gonna be just as political as Congress, why do we need it? Right? But let Congress decide all these issues, which they should be deciding more for sure. All right. The Supreme Court should be taking more cases. Congress should be doing more legislating. Only the president throughout administrations needs to sit down, watch more movies, eat more popcorn. Maybe the president needs to go get a job at that theater. I'm just happy we solved this. Yeah, we did. It's done now.

It's airtight. Should we just go ahead and send this to Mike Johnson now? This is your blueprint. And the one other thing I'd add, Judge, you will know, I'm sorry, I keep calling you Judge, that's my inherent Southern manners. I was traveling with Heidi Heitkamp not long ago, who's a former Senator, and I kept calling her Senator. And you know how she got me to stop? She just helped, she flipped me the bird until,

and held it up there until I called her Heidi. But the, you know, one of the challenges that we have, like we've got all of this, the problem is plain before us. There's no path to a solution of all that we talked about except through the judiciary. But Judge, one last thing I wanna say to you, you'll know that we've made it.

It is not, when is Alpha Romeo ads, Boeing ads, Boeing. That's when we've got somebody listening who can buy a 787, that's when we'll have made it. I'm sure you'll get there. I'm sure you'll get there. I mean, the one thing I would end with is, we're talking about what should the Supreme Court do? What could Congress do to stop or limit this problem?

At the end of the day, whether judges can issue these injunctions, I mean, there's a whole other issue of whether they should. And it just goes back to the, I think, the humility, the restraint that affects a number of issues that I think judges should show. While they do have a critical role and while they should make bold rulings when that's required. I do think the judiciary, in many ways, has lost what were famously called the passive virtues. So I actually wrote a dissent in a case where I was actually vindicated by Justice Barrett. I think at the end of the dissent, I said, wither the passive virtues. Because I we're on both sides, people, you know, there's this

view of an active judiciary that can solve every problem is another reason where we are where we are on this universal injunction issue. Amen to that. Greg Costa from Gibson Dunn and host of the podcast, A View From the Bench with his triumphant return. Thank you for joining us and sharing all these ideas. Thank you. Thank you, it was fun.

Okay, David, are you convinced? What solution would you sign up for right now? So I mean, I've long been convinced that this is a problem, long been convinced that it needs a solution. The only question that I have is about the three judge panel. I would tend to want to locate It'd be the same court for all of these I get the I get the concern that you would have

heightened very heightened stakes in the confirmation hearing fine, I Also get the idea that do you want it all the time in DC? No, I do think geography matters. So I was kind of in jest saying St. Louis, mainly my jest is that St. Louis is not my favorite American city, but I would say having a single three judge

or a court, a single jurisdiction from which the three judge panel is drawn would be my preference to just wipe out forum shopping entirely. But I don't know, Sarah, maybe I have total blinders on, but this feels like one of those common sense issues that you could get a kind of like 70-30 majority on 80-20 if you just kind of drain it from the partisanship of the moment. Okay, so here's where I end up. I understand the problems with associational standing, but I think the benefits outweigh the costs.

I'm for keeping associational standing, the organizational standing stuff that's already been mostly killed off, like, good riddance. I am for the random assignment of judges. I think technology takes care of that. I think it also creates this nice incentive for the plaintiffs themselves to want to keep the focus on just their own harms. But again, if you have an association and the association represents companies that

operate everywhere, I might not have fixed very much. But I'm okay with that too, because I actually don't think this is a huge problem for the very reason that it's a temporary one. The preliminary injunction is preliminary. Eventually, you hear the merits. And by eventually, I mean four months later. And then you go through the rest of the process on the merits. It goes up to the Supreme Court or not. So we're talking about like a four month problem. And I guess I don't care if presidents don't get their way for the first four months because they chose not to go through Congress. And that's four month problem. And I guess I don't care if presidents don't get their way for the first four months because they chose not to go through Congress.

And that's not my problem. 100% agree with all of that on the cost of delay. I would prefer that the cost of delay bear be borne by the executive branch. If they're out there circumventing Congress, the cost of delay should be on them. Where I am very, very, and I'm also with you on associational standing, where I'm super persuaded is on the forum shopping point and combined with the universal injunction.

So you could have, as he said very well, you could have a district court judge issue an injunction say out of San Francisco. And that would in essence, Trump say a court of appeals decision out of Cincinnati in the Sixth Circuit saying it's all good to go. Like that system makes no sense. And it undermines the judiciary. And faith, you know, it makes it seem more partisan.

That's why I also think he's right. The Supreme Court will be speaking to this before the end of this term defined as the beginning of the next term in October. I think it could be over the summer. Okay. To put a pin in a future discussion, does the Supreme Court respond to this moment in an interesting way by sort of saying not backing down one bit from its ability to issue rulings and contradiction of the administration's desires, but also by cutting

off or limiting the use of the judiciary to issue big-time sweeping rulings on anticipatory harms such as the way it's side-eyeing facial challenges or might side-eye nationwide injunctions. So does it, on the one hand, narrow your ability to mount the big sweeping challenge at the same time that it protects its ability to rule on the specifics of cases that are meritorious on their facts. And a big problem for the court, they can't do anything about forum shopping.

Like the Supreme Court can't fix that part. No, no, not one thing. It's just not in their remedies buckets. More on that on the next advisory opinions. Who knows what we'll have to talk about next time. Oh my God.