The Future of Class Actions after Oral Argument in Trump v. CASA

Many people have asked me in the days after the Supreme Court argument in the birthright citizenship case, Trump v. CASA, Inc., about my view of Solicitor General John Sauer’s proposed alternative to universal injunctions: class actions. As the readers of this blog know, I am a fan of class actions. But I don’t think they will solve many, if any, of the problems with universal injunctions.

What are those problems? I divide them into two categories: formal and functional.

The formal problem is that universal injunctions award relief to people who are not parties to the case before the judge. We are not talking about incidental relief of the type Justice Jackson invoked at oral argument; we are not talking about an injunction against a power plant that says, “stop polluting the plaintiff’s air,” and the way the power plant chooses to comply with that injunction improves someone else’s air too. We are talking about an order from a court that says, “you can’t pollute the plaintiff’s air or anyone else’s air.” Do plaintiffs have standing to seek relief for others? Do judges have jurisdiction to award it? Many formalists say such relief goes beyond the “case or controversy” before the court.

The functional problems are multi-fold. To begin with, universal injunctions lead to extreme forum-shopping: because you can often sue the federal government anywhere in the country, you can often file your lawsuit asking for a universal injunction in a division with only one judge or only judges of one political party. In other words, you can often file your lawsuit before judges who are not representative of the judiciary as a whole. Yet the universal injunction allows those judges to shut down a presidential program for the entire country. Shutting down politically popular programs by running to outlier judges is not very democratic.

Yes, the government can appeal universal injunctions, but how long will that take? Half of an administration? Yes, those appeals can be rushed, but do appellate courts make good decisions when they are rushed? Does the Supreme Court make good decisions when it has to decide the merits of a hotly-contested question after the first court rules? Or does it make better decisions after a bunch of courts have ruled and the arguments have marinated a bit? Many functionalists think the latter.

Finally, even when the government wins one of these cases, what has it won? Because “everyone else” is not a party to the case, there is no preclusion. Others can try again in a different one-judge or one-party division and see if it works out better. Yet if the government loses, it loses for everyone. That’s not symmetrical, and many functionalists think it isn’t fair.

This dilemma brings us to the Solicitor General’s solution: a Rule 23(b)(2) class action. Rule 23 permits courts to certify class actions for injunctive relief, but only under certain circumstances designed to protect class members, the court system, and defendants. The Solicitor General asked: if a plaintiff wants to get relief for nonparties, shouldn’t it have to certify a class of those nonparties first?

Several Justices asked whether this would solve the above problems. In my view, although it might solve some of them, it won’t solve the most pernicious ones, and it might not solve any of them.

Let’s start with the problems that might be solved. Class actions might solve the formal problem: once a class is certified, the nonparties are indeed legally treated like parties. The plaintiff—now the representative plaintiff—can seek relief for them, and the court now has jurisdiction to award it.

Class actions might also solve one of the functional problems: once a class is certified, the class members are bound by whatever happens, whether good, bad, or ugly. Symmetry is restored. Indeed, one of the major impetuses behind the modern Rule 23 was to end something called “one-way intervention”: under the old Rule 23, class members in certain class actions could wait until the end of the case to opt in and join the class. Obviously, they would do this only if the case had been won. Everyone thought that was unfair back in 1966 when the modern Rule was conceived, just like the Solicitor General thinks today about universal injunctions.

But the other functional problems remain unsolved. Extreme forum-shopping will continue, with plaintiffs filing the same lawsuits they file now, but on behalf of a class. Rushed decision-making will continue. Although it is true that class certification can take years, it doesn’t usually take as long in injunctive class actions—there are fewer hurdles in Rule 23 for them—and some courts have begun certifying them very, very quickly. Indeed, I recently saw one certified on the same day the complaint was filed (!) to grant the class preliminary injunctive relief. That puts the same pressure on the appellate courts to intervene that universal injunctions currently do.

And all this assumes the Supreme Court will require a court to certify a class action to award class-wide relief to begin with. But shortly after the CASA argument, it didn’t require that of itself! In A.A.R.P. v. Trump, the Court ordered class-wide relief for a “putative” class, meaning an uncertified, potential class. I struggle to see the difference between awarding relief to an uncertified, potential class and a universal injunction. Uncertified classes do not solve the formal problem, and they do not solve the one-way preclusion problem. You can’t preclude a class member if a class was never certified.

Thus, as much as I love class actions, I am pessimistic that much good will come from them here. Indeed, I suspect they will bring us right back to where we are now.