Judges’ Executive Check Works Best When Politics Kept Out of It

With these bold words, Chief Justice John Marshall established the doctrine of judicial review: “It is, emphatically, the province and duty of the judicial department, to say what the law is.”

Though unarticulated in the Constitution, the power of judicial review has been an article of faith for more than 200 years as how our federal courts exercise checks and balances over Congress and the president. This power is essential to maintaining the rule of law.

In the last 25 years, individual US district court judges increasingly have exercised judicial review by granting sweeping injunctions blocking presidential executive orders and policies. The ink was hardly dry on President Donald Trump’s birthright citizenship order when a federal judge in Washington State issued a nationwide injunction blocking it.

During the first three years of President Joe Biden’s administration, 14 nationwide injunctions blocked his executive orders and policies. During Trump’s first term, individual US district judges issued 64 nationwide injunctions blocking many of his administration’s policies—amounting to over one half of the 127 such injunctions issued since 1963. President Barack Obama’s administration received 12 nationwide injunctions, while President George W. Bush’s administration received six.

Nationwide injunctions from a single federal judge blocking presidential initiatives are controversial. Scholars and judges have questioned whether they are constitutional, but the US Supreme Court never definitively ruled on this issue. Critics say it’s an abuse of judicial power for one judge—unelected and unaccountable to the electorate—to block a presidential initiative, but supporters defend them as essential to safeguarding constitutional rights from presidential overreach.

A recent Harvard Law Review article concluded that nationwide injunctions are becoming more common and are “overwhelmingly issued by judges appointed by a President of the opposite political party as the President who promulgated the policy at issue.”

During Biden’s administration, 100% of the nationwide injunctions blocking his policies came from judges appointed by a Republican president and, during Trump’s first term, 92% of the nationwide injunctions were from judges appointed by a president who was a Democrat.

These numbers are cause for concern. Taken at face value, they create the impression that federal judges are ruling based on political affiliation rather than on the merits of the case. This undermines public confidence in the court system, threatening the rule of law, which depends on the willingness of the public and the elected branches of government to accept a judgment or order as binding, even if they disagree with it.

These statistics also are highly misleading. Two words—forum shopping—explain why the overwhelming number of injunctions come from judges appointed by a president of the opposite political party as the sitting president. A Democrat appointed two-thirds of the US district judges in California, while a Republican appointed two-thirds of the US district judges in Texas.

Simply put, parties that file lawsuits attempting to block a presidential policy strategically file their complaints in a state with a high probability of being assigned to a judge not appointed by the current president’s political party. In some states, all federal district judges were appointed by a Democrat, while in others, all were appointed by a Republican, allowing litigants to game the system.

The vast majority of federal judges decide cases conscientiously, based on the facts and the law, irrespective of their political affiliation. Many decline to issue nationwide injunctions, recognizing that they are only justified in extraordinary circumstances, regardless of their party affiliation.

Similarly, as was the case with an early injunction relating to the birthright citizenship executive order, federal judges of the same political affiliation as the president will issue nationwide injunctions when they conclude they’re necessary to stop presidential action that violates the Constitution or federal law.

Nationwide injunctions are an extreme remedy and shouldn’t be issued routinely, especially if they block presidential policies affecting the entire nation. But in proper circumstances, they are essential to the judiciary’s ability to prevent presidential overreach.

Congress and the Judicial Conference, the policy-making arm of the federal courts, should consider reforming the judicial system by requiring random assignment of cases seeking nationwide injunctions, restricting forum shopping, or requiring the assignment of cases seeking these injunctions to three-judge panels instead of a single judge.

Such changes would go a long way to de-politicizing the issuance of these injunctions and help restore public confidence in the courts.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Paul Grimm is professor of law and director of the Bolch Judicial Institute at Duke Law School. From 2012 to 2022 he was a district judge of the US District Court for the District of Maryland.

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