In this Bloomberg Law op-ed, Fordham Law Dean Emeritus Matthew Diller discusses Justice Brett Kavanaugh’s concurrence that centers on the question of how federal courts should bring about national uniformity in the absence of nationwide injunctions. He also says the Supreme Court is on course to rely more on its “shadow docket” and erode the country’s trust in the rule of law.
There’s a lot to unpack in the US Supreme Court’s decision in Trump v. CASA, which focuses on the authority of federal courts to issue universal injunctions to government policies. Lawyers and lower courts are scrambling to figure out its impact on the scope of injunctions in the many pending cases against the Trump administration as well as the availability of class actions and other work-arounds.
Amid the welter of footnotes and side discussions in the various opinions is a concurring opinion by Justice Brett Kavanaugh that sets forth a striking and dangerous view of how our judicial system should deal with challenges to governmental policies during the months and often years it takes to reach full resolution of an issue.
Read “Kavanaugh’s ‘Shadow Docket’ Stance Paints a Dangerous Picture” in Bloomberg Law.