Litigation Update: Rodgers v. Bryant

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Litigation Practice Group, was recorded on Tuesday, January 28, 2020, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on Rodgers v. Bryant. My name is Micah Wallen, and I am the Assistant  Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Anthony Sanders, who is the Director of the Center for Judicial Engagement at the Institute for Justice. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Anthony, the floor is yours.

 

Anthony Sanders:  Thank you. Thank you very much, Micah, and to everyone at The Federalist Society for making this call come together today and for putting these teleforums on. I think they’re an invaluable service for the membership.

 

      I’m going to talk today about this case from the Eighth Circuit that came out a couple months  ago, Rodgers v. Bryant, discuss the facts of the case which are very basic and aren’t a big part of the story of why we’re talking about it today, the Eighth Circuit’s opinion, both the majority opinion and the dissent by Judge Stras, where the case is at now, and then some larger issues to come out of the case and its discussion of what are called today universal injunctions; that is, an injunction that enjoins the government from enforcing a law that benefits more than just the plaintiffs involved in the case when we have a case that’s not a class action.

 

      And when I’m talking about this issue, by the way, I won’t, at least in my opening presentation today, be talking about nationwide injunctions. Nationwide injunctions are a subset of a universal injunction, and they’ve gotten the lion’s share of attention on this issue the last few years with some very famous injunctions against the Obama administration and now against the Trump administration. Just yesterday, we had a concurring opinion by Justice Gorsuch that was joined by Justice Thomas that was critiquing the use of these nationwide injunctions but also universal injunctions in general.

 

      So this is becoming a big issue, but what I like about this case we’re going to talk about today is it talks about universal injunctions away from the whole nationwide injunction issue, which has a lot of things that concern it that aren’t at the core of this question of whether a court had the power to issue a universal injunction in the first place. So I’m excited to talk about this particular topic today.

 

      If you’re into the nationwide injunction issue, by the way, if I may say so, we at Institute for Justice just put on a podcast yesterday in a conversation with Scott Keller, the former Solicitor General of the State of Texas. That is on our Short Circuit podcast. You can find it wherever you find your podcasts. You may be familiar with it. And we talk in detail about the nationwide injunction issue.

 

      But turning to this case and universal injunctions, this case comes out of the State of Arkansas. In Arkansas, there is a statute that criminalizes certain kinds of panhandling. It’s called an anti-loitering law. Really, what it’s getting at is people begging in public places. And how it criminalizes that is it says it’s illegal for the purpose of asking for anything as charity or a gift, certain kinds of behavior. And so if you do that in a threatening manner or you block traffic, that breaks the law.

 

      The problem is that if you do the same thing but use different kinds of speech, like you’re electioneering, you’re asking for people on the sidewalk to vote for your favorite candidate, or you’re trying to sell something, or some other kind of speech, that doesn’t violate the law, which if you know a bit about First Amendment law means that that’s a content based restriction on speech. That’s subject to strict scrutiny. That probably means that it’s unconstitutional.

 

      So two people who had in the past been arrested under this law and wanted to continue engaging in panhandling in Arkansas challenged the law. They were represented by lawyers who were working with the ACLU. They do not file a class action. It’s just these two individuals, but they ask for an injunction that goes beyond just the two of them. And they move for a preliminary injunction. The district court in the preliminary injunction says yes, this is likely a violation of the First Amendment, and because of that, the other factors for a preliminary injunction were easily satisfied, and then said the injunction you’re going to get is against the defendant, the Chief of Police in the state, to not enforce the law against anybody. Not just those two individuals, but against anyone.

 

      The state appeals. They try and argue that this law is not likely unconstitutional and the preliminary injunction should not issue, but they have a tough argument there. And all three judges at the Eighth Circuit find that no, this law is likely unconstitutional and there should be a preliminary injunction. The disagreement at the panel stage of the Eighth Circuit is the scope of that injunction.

 

      So the majority is written by Judge Melloy joined by Judge Smith, and they say, “Look, this is a First Amendment case.” Lots of First Amendment cases give injunctions broader that just the plaintiffs involved. They cite to a Supreme Court case from 2004, but they could have cited to others where the Supreme Court has been okay with this kind of wide injunction. And they say, “Well, practically speaking, if we just had an injunction against the two of them, to not enforce the law against these two individuals but not anyone else, that would be a bit impractical to even enforce. And if someone else brought the same lawsuit, they’re obviously going to win because this is a content-based restriction on speech.” They don’t say this, but they basically say, “Let’s just get this over with and enjoin the lot with this injunction.”

 

      Judge Stras in his partial dissent takes issue with this, and he has two arguments. The minor one is that this is at the preliminary stage. And usually at the preliminary stage with an injunction, you’re even more careful than you would be later about the scope of that remedy and just narrowing down on what is actually needed to keep the status quo. And he says for that reason, we really should have an injunction that protects these two individuals.

 

      But his major argument is an originalist argument about the proper scope of the judicial power. Now, he doesn’t go into detail about, say, the text and the history of Article III of the Constitution, but I think that’s what’s underlying a lot of his discussion. What he does is cite to what the Supreme Court has said about this judicial power in the scope of equitable powers under the Constitution.

 

      Now, the Supreme Court has said that Article III courts have, when they engage in equitable remedies, Constitution says they have all powers of -- they address cases of law and equity, and so when they engage in those equitable powers, they have the same powers that the High Court of Chancery had in England in 1789. And Judge Stras says, “Look, in 1789, the High Court of Chancery did not have the power to issue a universal injunction.”

 

      He says there’s an exception which was called a Bill of Peace where you might have a multiplicity of suits. And so to stop that, the chaos of all the different lawsuits being brought, you just try to deal with the issues in one lawsuit and that would be applied to people beyond just the plaintiff and the defendant in the case. But he says that is served today by the modern class action and Rule 23. That’s been taken care of. And so there just isn’t this power to issue an injunction that goes beyond just the parties in the case.

 

      He cites to some scholarship in this regard, and one in particular is an article by Professor Sam Bray who is at Notre Dame and his 2017 article about multiple chancellors that focuses on nationwide injunctions but talks about universal injunctions more generally. It is a fascinating article with a lot of history that I recommend to everybody.

 

      So that’s what Judge Stras’s dissent said. Since that time -- the case came out November 6. Since that time, the state has actually— technically, the Chief of Police — but the State of Arkansas and the Arkansas Attorney General’s Office has petitioned for en banc review. The response is due in a couple of weeks, from my read of the docket. So this issue could be going to the Eighth Circuit en banc.

 

      I’m a little skeptical that the Eighth Circuit will want to take this issue for reasons I’ll get into in a moment. But it could be that this would actually bring -- that this case would actually bring this issue all the way to the Supreme Court where at least two justices just yesterday have said that they’re interested in looking more at this issue.

 

      So Judge Stras did cite this article from 2017 by Sam Bray that, again, I highly recommend. What he didn’t cite, and I think he didn’t cite it because it’s literally just so new, is an article that just came out in the Harvard Law Review, and the preprint just became available last fall, by Professor Mila Sohoni who is at University of San Diego. And her paper is “The Lost History of the ‘Universal’ Injunction.”

 

      So what she does in response to Professor Bray and others is look at the history of when universal injunctions have been issued as an originalist matter about whether Article III courts have the power to issue universal injunctions as part of the judicial power of the United States, as Article III says. And she makes a pretty compelling case that at least since the 1890s, the Supreme Court has been okay with these types of injunctions. And she goes into lower Article III courts issuing those types of injunctions and that it has been a long accepted practice.

 

      Now, of course, 1890 isn’t 1789, and I’m sure there’s a lot more that can be said between these scholars on that issue. I haven’t delved in the primary sources and am not an expert on that issue, but I wanted to outline that other side of the originalist argument is out there. And so this is a complicated issue, a very important issue about whether the courts have that power, but it’s an issue that’s not been settled by any means in the scholarship so far. So I recommend Professor Sohoni’s article to anyone looking into this issue also.

 

      More on a practical level, I want to talk about my experience -- not my own experience, but that I litigate public interest cases. I work with people at IJ who litigate public interest cases. So I want to give a little bit of perspective on what this issue means from a public interest litigator perspective, for someone who takes a case on behalf of a client to further not just their client’s own interest, but with their client’s encouragement, the broader issue for people out there, which is what public interest law is all about.

 

      When you get a -- say you have a public interest case and it goes all the way to the United States Supreme Court and you get a ruling that, say, a law in unconstitutional. And this can be true for whatever issue you’re talking about or whatever group you’re talking about, whether it’s the ACLU or IJ or ADF or the Becket Fund or name your group. If you get to the U.S. Supreme Court and have a law declared unconstitutional, that is a great victory for your public interest campaign. And it really doesn’t matter if you get an injunction along the way at that point. Going forward after you win at the U.S. Supreme Court, it can help in certain circumstances. Maybe you’ll need follow-up litigation for injunctions on some issue, but you have that ruling, and that will then affect whether people enforce laws, whether it’s the federal government, state government, city government.

 

      If you get a ruling from a state supreme court about a state or local law, you’re going to have the same effect. But if you have a case where you get a ruling, say, at a state trial court or a federal district court, and maybe you get an injunction, but you only have an injunction that binds the government from enforcing the law against your particular clients, that is a very different matter because then, say in this case, the State of Arkansas doesn’t have a barrier to enforcing this law against anyone else outside of the lawsuit.

 

      Now, response to that is, “Well, you can do that as a class action.” And in a class action, everyone in the class is then going to benefit from the lawsuit, from the injunction. That can be true, and class actions can be an effective tool with injunctions. They, of course, require a lot more time, a lot more funds. Often, these kinds of cases are not paid for by the clients. I’m sure in this case, the ACLU is involved. These panhandlers are not paying for the lawsuit. And so that can be a barrier to having these issues litigated in the courts for a law that is unconstitutional.

 

      And sometimes the class action just doesn’t work under the standards for how you get a class action certified, but you still have a law that arguably is unconstitutional. We actually had this happen in a case in Washington state where we challenged a campaign finance restriction on recall campaigns, is what the facts of the case were. And we received an injunction for our clients who were a campaign committee and a couple people had set it up, but for reasons of the court not wanting facial relief and instead as-applied relief, the injunction was only for our clients, so what Judge Stras argued should have happened in Rodgers v. Bryant.

 

      And what that meant was that our clients in effect became, as the state seemed to put it, knights errant who could take that injunction and run around the state of Washington setting up recall campaigns, and they were immune from the law. But everyone else had to continue abiding by this law and they would have to bring their own lawsuit if they would set up a campaign and not be bound by those same limits. So if we are going to go to a situation where we don’t have universal injunctions, as some people are arguing, there are some pretty huge practical differences, especially when it comes to public interest litigation, that we would need to deal with.

 

      One final thing I meant to include in the discussion of Judge Stras’s argument is it sounds very compelling. He could be right on the history, as some people, I’m sure, believe that he is. But if we went in that direction, it would be a big change from practice. We get universal injunctions frequently in litigation in all areas of the law. That’s been true for a long time. Perhaps it wasn’t true in 1850, but we have a lot more government than we had in 1850, and therefore, a lot more availability of these kinds of remedies.

 

      So I see it a little bit as like an argument to go back to the originalist understanding of other provisions of the constitution, some of which I very much agree with. I think, say, that the Slaughterhouse Cases were incorrectly decided, and we should overturn that precedent and go back to the original meaning of the Privileges or Immunities Clause. But that’s a tough argument, as we’ve learned, and that issue, or the Commerce Clause, or what have you. And so similarly, going back to the original understanding, if it’s the understanding that, say, is stated in the dissent in this case, that’s going to be a tough row to hoe for proponents of that.

 

      And so they should understand that it’s not like this is a recent thing that just happened because of what the Trump administration has been up to and groups suing the Trump administration. This is something that’s been a part of our legal culture for a long time now, and it would be a big change if we didn’t have universal injunctions anymore.

 

      And with all that, I’m very curious to hear what you all have to say and any questions that you might have. 

 

Micah Wallen:  While we’re waiting for the first question to roll in, Anthony, I wanted to ask you about this case. What do you think are some of the differences here between this type of injunction and the more national issue of the nationwide injunctions that have been so controversial in recent years, particularly during this administration?

 

Anthony Sanders:  Sure. Well, the great thing about this case and about an injunction against a state or against a municipality is that you don’t have all those other issues. And you can think about the core issue of whether a court just inherently has the power to issue an injunction beyond the parties. With nationwide injunctions, there are practical considerations on either side that is really just a balance. So on one side, you have the fact that if a court has the power to issue an injunction for its entire judicial district, or even for the circuit it’s in if you’re talking about a circuit court of appeals upholding an injunction, perhaps. That’s still a universal injunction. It’s still going beyond just those plaintiffs. But somehow, it doesn’t seem as big, of course, because it’s not the same geography.

 

      And the reason for that is because on the other side, we have this tradition, which is a good tradition, of how cases percolate up to the Supreme Court. And so we have our different circuits. We have different rulings. Of course, we are always having circuit splits. That’s the normal way that cases get to the court. The issue percolates, as we say. But you don’t get that percolation if you have a nationwide injunction from one district court because then there’s no reason for that issue to be actively litigated anywhere else because the law is enjoined. Percolation can still happen in those circumstances, but it’s less likely, especially these preliminary injunctions. Then you have maybe a major policy initiative that’s frozen for the life of the case.

 

      Now, there are pros and cons for that entire issue. Fast tracked appeals to the court of appeals and the Supreme Court, they may sound radical, but maybe they’re not that radical. Like something I’ve talked about in the podcast we released yesterday is the fact that the Supreme Court seems bothered by these injunctions coming up, but it wasn’t that long ago the Supreme Court had a lot more cases than it has today. It only has about 75 merits cases a year now, so maybe they have some bandwidth for these types of cases. But I understand that they’re often issued in a very expedited manner with a preliminary injunction that rockets up to the Supreme Court, and then you’re making law without maybe a full consideration with the whole record.

 

      So I don’t have a perfect answer on that, but all of that is stuff to weigh about nationwide injunctions that’s really not an issue with the universal injunction more generally. So when we debate these issues, and they often can be about real hot topic issues, we should remember that nationwide injunction is not synonymous with universal injunction and try to be a bit dispassionate when we talk about the two.

 

Micah Wallen:  And also, I wanted to ask whether there’s any recent cases that deal with these universal injunctions, historically how those were treated, and what makes this case different?

 

Anthony Sanders:  Yeah, sure. So this case, I think, is pretty typical for the recent practice of the universal injunctions. I don’t fault Judge Stras at all for the comments he’s made in his dissent because  he’s a good originalist. And I think as an originalist argument, that this is one that should be aired and we should talk about to more fully understand the constitutional basis for a court’s powers. But as a practical matter, as I said before, universal injunctions have been used for a long time. I’ve asked for and received some in cases I’ve had in both state and federal court. The same can be said of many of my colleagues.

 

      The history of this is interesting that I think some of the history that’s talked about by both Professor Bray and Professor Sohoni, there’s not that much disagreement on. It seems that what we would call a universal injunction definitely was going on by, say, the mid-nineteenth century in cases involving municipalities. Now, Professor Bray says that that is very akin to the old fashioned Bill of Peace or a modern class action. I think that might be just based upon the fact that you have less stakeholders involved when you’re suing a city. But I see that as a pretty long accepted practice that you can have that type of relief.

 

      Now, when it comes to states and the federal government, definitely, it’s not until a bit later that we begin to see that. But Professor Sohoni cites a couple of cases from the 1890s where it seems like the Supreme Court is okaying an injunction that was used down below. Some of this is hard because what comes down to us are the actual Supreme Court opinions and maybe opinions of the circuit courts. But often in these cases, what the relief granted below was is a little immaterial by the time it gets to the Supreme Court, and so we kind of have to read the tea leaves as to what was going on in the lower courts.

 

      And thus, the Supreme Court doesn’t find occasion to say, “Well, yes, that injunction was okay because it is part of the Article III powers of the courts to issue that type of injunction.” The Supreme Court will just say, “Okay, and injunction was issued and we’re here now to discuss whether the law is constitutional, the actual merits of the case.” So this can be frustrating on the amount of material that’s available in the historical record, but it doesn’t mean that that wasn’t going on in trial courts at that time.

 

      By the way, Professor Bray and Sohoni are debating each other tomorrow. They’ve had a little bit of -- in the blogosphere, a little back and forth on these issues since her article preprint came out, and they’re debating tomorrow at Duke Law School. If you happen to be in the triangle in North Carolina, you might be close enough to go to that debate. I’m very curious as to what they discuss tomorrow, but I encourage you to -- anyone interested in the issue should read both of their articles and make their own conclusion.

 

Micah Wallen:  One question actually has come through.

 

Sarah Billingsley:  Hi. This is Sarah Billingsley, and my question is what is the proposed framework for a proper universal injunction, and how could forum shopping or other activist-like decisions be avoided?

 

Anthony Sanders:  Sure. Two very good issues. In terms of the proper frame for the injunction, I think what you might mean is, and I’m sorry if I got this wrong, but I think what you might mean is some cases and you’ll have injunctive relief, it really doesn’t make sense to go beyond just the plaintiffs as far as the scope of the injunction, but some cases it may. Now sometimes this comes out as the facial as-applied distinction, and I think that to some extent, that tracks. So the facial versus as-applied distinction has unfortunately never been crystal clear in the case law, but basically, as you probably know, means that in a facial relief or a facial ruling a law is unconstitutional, it’s going to be unconstitutional no matter how it’s applied. And there’s different theories as to what the standard should be for that, but essentially, it’s going to be well beyond just the parties involved.

 

      And then there’s as-applied relief on the other side of the spectrum where just because of the particular facts of my situation, it’s unconstitutional to apply that law or that regulation to me, even though with different facts, it might be different. Now, in that latter case, of course, it seems much more sensible for the injunction to just be for that individual plaintiff. Now, you can have something in the middle where you say, “Well, I, a plaintiff, and those similarly situated to me by some classification require this injunction,” but it still might be okay to apply the law to someone else in a very different circumstance. So how the court structures its injunction can depend on those various factors.

 

      As far as forum shopping, that’s really a nationwide injunction issue. And I don’t have the exact answer to that on if you take away, say -- for example, for a nationwide injunction, I think there’s 94 districts in the country. I know there was some forum shopping in some of the lawsuits against the Obama administration. Now there’s some forum shopping in the lawsuits against the Trump administration. You could get rid of all that by saying you have to bring your lawsuit in the District of Columbia, or you have to bring your lawsuit against a specific court, wherever it is, and it has these -- a three judge panel is how Congress used to set it up in some situations. But then you have the other extreme of you’re forcing someone to travel all the way to the District of Columbia to file a lawsuit. So that’s a practical consideration.

 

      I don’t have an exact answer to it, but that’s what you will want to think about. When you’re talking about a state law or certainly a municipality, of course, forum shopping is much less of an issue there. And so I think when we’re thinking about universal injunctions in general, we should remember that and that forum shopping is not inherently a bad thing with universal injunctions. It’s just something that can come up when it comes to the nationwide aspect.

 

Micah Wallen:  We had another question join the queue as well, so we’ll move on to that next caller.

 

Caller 2:  I want to thank Director Sanders for his very fine remarks, and I had this question for him. I was hoping that he might be able to expound a little bit more on Judge Stras’s dissent and maybe speculate a little bit or expound a little bit on the importance of that particular dissent. Is it most likely to drive litigant’s strategies as these matters are litigated around the country? Is it important because it helps in framing for Supreme Court analysis? What is the longer-term impact of Judge Stras’s speaking to the ages?

 

Anthony Sanders:  Thank you. That is an excellent point about Judge Stras’s dissent. And though I do perhaps disagree with it or at least caution about it in some ways, it is by far, from what I have seen, the most in-depth analysis of this issue. And he should be commended for putting that into the federal reporter and so people can turn to that when they’re trying to have a thoughtful analysis of this issue.

 

      So I do think the fact that the dissent is there, of course, as it always does, makes it more likely that the Eighth Circuit en banc will take the case or that the U.S. Supreme Court will take the case. But when this issue comes up in some other circuit or comes up through some other case at the Supreme Court, I’m sure they will be taking careful note of what Judge Stras wrote here.

 

Micah Wallen:  No other questions in the queue. Anthony, did you have any closing remarks for us today?

 

Anthony Sanders:  No. I’d just like to thank all of you for listening in today. And this is an exciting topic that seems to be only getting bigger and bigger in the news and in the legal commentary sphere, so keep your eyes on the court, and we’ll see when this issue strikes again.

 

Micah Wallen:  And on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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