Suggested Answers to the Short Quiz

[johnkarls]

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Question 1

Are there more than 670 U.S. District Court judges?

Answer 1

Yes.

Question 2

In recent years, have activist lower-court judges issued nation-wide injunctions on matters of national importance?

Answer 2

Yes.

Question 3

Is this practice especially egregious when combined with the notorious practice of “judge shopping” (filing a lawsuit in front of a notoriously-sympathetic judge)?

Answer 3

What do you think??? Let’s discuss!!!

Question 4

Does this mean, as a practical matter, that anyone can file a lawsuit in front of a sympathetic judge and obtain a national injunction that, FOR YEARS UNTIL THE MATTER REACHES THE U.S. SUPREME COURT, suspends federal law enacted by Congress, Executive Orders promulgated by the President, regulations issued by federal agencies, etc., etc.???

Answer 4

Yes.

Question 5

Indeed, did the National Law Journal report on 7/14/2020 that during 2017-2018 there were 25 nationwide injunctions and that “a few [Supreme Court] justices are on the warpath against nationwide injunctions” -- though obviously not a majority for banning them outright?

Answer 5

Yes.

Question 6

Instead, has the Supreme Court begun issuing peremptory rulings in many such cases – invalidating the nationwide injunction while permitting the cases to wend their leisurely way through the lower courts without the disruption caused by the activist judges?

Answer 6

Yes.

Question 7

Has Law Prof. Mila Sohoni documented that national injunctions have been issued for more than a century by lower courts against federal statutes, state laws and federal agencies -- starting in 1913 with the Supreme Court itself issuing a national injunction against enforcement of a federal statute until its constitutionality could be decided by the Supreme Court?

Answer 7

Yes – please see the discussion in viewtopic.php?f=748&t=2360&sid=74c45640 ... 66bbf69ee6 of Lewis Publishing Co. vs. Morgan at article pages 944-946.

Question 8

Nevertheless, because of the recent avalanche of national injunctions by lower courts, does the current situation smack of legal-history buffs discovering a rarely-used device that could be employed to weaponize the judicial system to create havoc?

Answer 8

What do you think??? Let’s discuss!!!

Question 9

Does Law Prof. Samuel Bray point out that national injunctions were rare until the 1960’s when they became more prevalent because of ideological shifts in national-government policies?

Answer 9

Yes.

Question 10

Does Prof. Bray point out many undesirable results such as those mentioned in Questions 3 & 4? Does he also mention the possibility of INCONSISTENT/CONFLICTING lower-court national injunctions?

Answer 10

Yes.

Question 11

Indeed, does our Original Topic Proposal include an example in 2023 in which a U.S. District Court Judge in Texas issued a de facto national injunction against use of the nation’s most popular abortion pill by suspending the FDA’s approval of the drug -- while a U.S. District Court Judge in the state of Washington ruled in favor of 17 state Attorneys General that the FDA cannot restrict the use of that pill in the 17 states represented in the lawsuit or in the District of Columbia???

Answer 11

Yes – please see “The U.S. Supreme Court vs. Lower-Court National Injunctions – In The Headlines Again” at viewtopic.php?f=746&t=2357&p=3169&hilit ... 4c31#p3169.

Question 12

Does Prof. Bray devote 13 pages of his 64-page law-review to (quoting the title of his article section) -- “Where Should We Go From Here”?

Answer 12

Yes.

Question 13

Does Law Prof. Alan Morrison in a 2/6/2023 Bloomberg News OpEd propose “It’s Time To Enact a 3-Judge Court Law for National Injunctions”?

Answer 13

Yes.

Question 14

After opining that some national injunctions are warranted though often, they are not, does Prof. Morrison propose that enactment of a federal law that “no injunction against a federal agency or officer may benefit any person beyond the named plaintiffs unless it is by a three-judge district court, which includes at least one circuit judge”?

Answer 14

Yes.

Question 15

What procedures does the U.S. Supreme Court already employ in policing national injunctions issued by lower courts?

Answer 15

The Supreme Court does not normally publish its procedures (including changes).

Accordingly, they must be inferred from actions by the Court, such as announcements that the Court has vacated a lower-court injunction and which Justices (if any) are described in such an announcement.

All lower federal courts (Circuit Courts of Appeal and District Courts) are assigned to a particular Justice for real-time supervision.

[Please see the list as of 9/28/2022 of Circuit Courts of Appeal and which Supreme Court Justice is assigned to each IAW Title 28 U.S. Code Sec. 42 at https://www.supremecourt.gov/about/circ ... ments.aspx. Although 28 US Code Sec. 42 does not specify, such assignments presumably extend to the District Courts within each Circuit.]

Each Justice has the power, inter alia, to vacate national injunctions issued by any lower court over which s/he has supervision – either without consulting other Justices or after deciding to do so.

Question 16

Would Prof. Morrison’s proposal replace the procedures the Supreme Court already employs? Or would they operate simultaneously?

Answer 16

His proposal did NOT specify.

Question 17

Can a federal law such as Prof. Morrison proposes constitutionally replace the procedures the Supreme Court already employs?

Answer 17

What do you think??? Let’s discuss!!!

BTW, the Supreme Court would decide, like any other constitutional issue, whether federal law such as Prof. Morrison proposes would be constitutionally acceptable.

Question 18

Do the procedures the Supreme Court CURRENTLY employs address the imbroglio well?

Answer 18

What do you think??? Let’s discuss!!!

Question 19

Since each Supreme Court Justice has supervisory responsible over a personal list of lower courts and can make peremptory rulings to suspend national injunctions either on the Justice’s own or, in the Justice’s sole discretion, after consulting other Supreme Court Justices, do the policing decisions over the last decade seem desirable?

Answer 19

What do you think??? Let’s discuss!!!

Question 20

Should such desirability be based on how the underlying issue is decided by the Supreme Court when it finally reaches the Supreme Court?

Answer 20

What do you think??? Let’s discuss!!!

NB: Whether or not you agree with particular Supreme Court decisions, it might seem desirable for Supreme Court actions vis-à-vis lower-court national injunctions to accord with the final decisions in the Supreme Court.

BTW, Prof. Morrison’s proposal of requiring 3-Judge panels (including at least one Circuit Court of Appeals Judge) to approve national injunctions could be criticized on this conformity grounds.

After all, the Ninth Circuit throughout much of its recent history has been generally recognized as a notoriously-liberal court. Accordingly, it could have been expected to favor many national injunctions that would be disapproved by the Supreme Court. And, accordingly, miscreants who “judge shop” could have been expected under Prof. Morrison’s proposal to “gold mine” in the Ninth Circuit.

Question 21

Do any of Prof. Bray’s ideas seem preferable to Prof. Morrison’s 3-Judge Panel idea (please see the 13 pages of Prof. Bray’s 64-page law-review to (quoting the title of his article section) -- “Where Should We Go From Here” at viewtopic.php?f=748&t=2361&sid=8991eac9 ... bdde21a52f)?

Answer 21

What do you think??? Let’s discuss!!!

Question 22

What’s to prevent a future Supreme Court from adopting less-desirable rules (putting aside the issue of whether current rules are ideal)?

Answer 22

What do you think??? Let’s discuss!!!

Question 23

And in line with Q-17, can anyone police the Supreme Court’s policing rules?

Answer 23

What do you think??? Let’s discuss!!!