Nationwide injunctions blocking U.S. government policies are overwhelmingly being issued by federal judges appointed by a president from the party opposite of the one sitting in the White House, a trend that risks politicizing the judiciary, according to a study published on Wednesday in the Harvard Law Review.
The law review's editors voted in April 2023 to dedicate the issue to that topic amid a series of ethics scandals at the U.S. Supreme Court and public outcry over its decision in June 2022 to overturn its 1973 ruling in Roe v. Wade, which had guaranteed abortion rights nationwide.
Former editors of the law review include three sitting U.S. Supreme Court justices. Julio Colby, a third-year law student who spearheaded the production of the annual "Developments in the Law" issue, said students in deciding to tackle court reform were aware judges are among its readers.
"What's a greater development in law than everything that's happening in our federal judiciary, regardless of where you stand on this?" he said.
Articles by students in the journal reflected divergent views on the topic, with some calling for Congress to pass enforceable ethics rules for Supreme Court justices and for ways to disincentivize "judge shopping" by litigants seeking to block federal policies.
The latter came at the conclusion of a study authored by students Layla Rao and Laura Aguilar examining 127 nationwide injunctions issued by federal judges from 1963 to 2023 blocking executive actions.
For a long time such injunctions were rare, with just two from 1963 to 1982 and since Republican Ronald Reagan was president, stayed in the single digits per presidential administration until former Republican President Donald Trump took office.
Trump's tenure was marked by such orders blocking his hard-line immigration policies and other parts of his agenda, with 59 nationwide injunctions, only five of which were issued by judges appointed by a Republican, the study found.
The study said nearly a quarter of those were issued by judges in the Northern District of California, a state where two-thirds of all judges today are appointees of a Democratic president.
During Democratic President Joe Biden's tenure, 14 nationwide injunctions have been issued through 2023 against his policies, all by Republican-appointed judges, many of whom are in Texas.
That's a lower number than during Trump's first three years, a fact the study's authors note may in part be due to judges shifting to instead vacating rules, a tactic that allows litigants to obtain essentially the universal remedy, in the wake of criticism of nationwide injunctions.
The article said the drop in nationwide injunctions under Biden "should not mislead: district court judges appear to be striking down executive policies of opposing administrations with unprecedented frequency."
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