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.
The End of Balancing?
Text, History & Tradition
in First Amendment Speech Cases After Bruen
Clay Calvert & Mary-Rose Papandrea
This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its novel Second Amendment test eliminating their usage actually “comports” and “accords with” how the Court protects free-speech rights. This Article initially illustrates how that assertion is partly correct but largely inaccurate. It then explores critical problems that likely would arise were the Court to impose its text, history, and tradition methodology from Bruen on First Amendment speech cases. In doing so, the Article addresses how this originalistic approach might affect the continued viability of the Court’s actual malice standard in defamation law adopted nearly sixty years ago in New York Times Co. v. Sullivan.
The Remedies for Constitutional Flaws Have Major Flaws
Richard J. Pierce Jr.
In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the Constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.
Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will increase and will become even more intractable if it continues to apply its present approach to interpretation of the Constitution.
Pierce argues that the choice of remedy problems will diminish significantly if the Court adopts an approach to interpretation of the Constitution that is less rigid. The Court should accord Congress the deference it deserves in recognition of the challenges that it faces in its efforts to create a government that is true to our constitutional values and that is capable of performing the critical functions of government.