Constitutional hardball—the breaking of norms while remaining technically within the bounds of the Constitution—has spread from the executive and legislative branches to the federal judiciary in the form of nationwide preliminary injunctions in politically sensitive cases. Preliminary injunctions evolved in the English judicial system to ensure that plaintiffs clearly in the right were not irrevocably harmed while waiting for torpid courts to rule on their case. Now, preliminary injunctions are a useful tool for delaying and disrupting the adoption of disfavored executive branch policies.
While the general problem of nationwide preliminary injunctions is well recognized, it is difficult to find satisfactory solutions. Proposals for reform have largely focused on near-total elimination of nationwide preliminary injunctions by restraining the power of district judges. Opponents of those reforms rightfully argue that because actions by the executive branch have come to dominate the policy arena, the judiciary is the only branch that can meaningfully constrain partisan executive actions. More bluntly put: the executive policies of the last several years have been so bad as to warrant constitutional hardball.
In this Article, I review the development of preliminary injunctions and judicial partisanship, dissecting exemplar preliminary injunctions from the past several years in politically sensitive cases. Careful review of the actual decisions in question reveals flaws in judicially created doctrines interpreting the four-prong preliminary injunction test that dates back to English courts of equity. These flaws have turned the preliminary injunction doctrine into a mini-trial with virtually no evidence instead of a pragmatic inquiry. Refining the preliminary injunction test is a promising, targeted reform that could preserve the value of preliminary injunctions while reducing their use as a political tool.
Jack Thorlin, Constitutional Hardball and Nationwide Preliminary Injunctions, 18 Duke Journal of Constitutional Law & Public Policy 1-57 (2023)
Available at: https://scholarship.law.duke.edu/djclpp/vol18/iss1/1