Paul Rand: Over the past decade, a quiet shift in the courts has given judges extraordinary power over national policy. It’s because of something called a universal injunction, which stops a federal ruling from being enforced.

Tape: A federal judge has indefinitely blocked the Trump administration’s plan to freeze federal funding.

Tape: President Biden’s plan for student debt relief is facing a new setback this morning. A federal appeals court has issued a nationwide injunction temporarily blocking the program.

Samuel Bray: So with universal injunctions as an option, you just have to find one judge who agrees with you.

Paul Rand: That is Samuel Bray, a professor at the University of Chicago Law School. Bray is an expert on how universal injunctions, also known as nationwide injunctions, affect US policies and the courts.

Samuel Bray: And it turns out that that judge, not from any bad motives, but just the way that judge sees the world, all of these look like really egregious cases. They all look like the rare case that needs a universal injunction. And so that’s not been able to be any kind of stopping point.

Paul Rand: And Bray says this has made our increasingly polarized politics even more polarized.

Samuel Bray: So at any one moment, it’s a very partisan issue because universal injunctions are used to stop everything a Democratic president wants to do or everything a Republican president wants to do.

Paul Rand: Bray is a prominent critic of these kinds of injunctions, arguing that they create institutional and democratic problems. And last summer, his scholarship was cited more than a dozen times when the Supreme Court heard oral arguments on birthright citizenship, a case that limited the reach of universal injunctions.

Tape: Welcome to the news hour. The US Supreme Court delivered a major decision today, one that will limit federal judge’s power to block the president’s agenda nationwide.

Samuel Bray: So the court agreed with my work. The court agreed that there is no basis in the history of equity and the principles of equity for universal injunctions. The court did not follow other parts of my argument, like the argument that it’s unconstitutional for federal courts to do this because it goes outside the judicial role. They said it’s not our job to decide the policy arguments, but we think there’s no basis in the law of equity and the history of equity for these injunctions.

Paul Rand: But Bray believes that the court should go further and that the role of the courts in our constitutional system is at stake.

Samuel Bray: I think it’s just part of our system that what makes our system special and gives us the rule of law is for courts to continue to act in a judicial way. Now, they need courage, they need backbone, they need integrity. They need to be willing to stand up to the president in Congress when they don’t act according to law, but it’s easiest for them to do that if they keep deciding cases.

Paul Rand: From the University of Chicago Podcast Network, welcome to Big Brains, where we explore the groundbreaking ideas and the discoveries that are changing our world. I’m your host, Paul Rand. Join me as we meet the minds behind the breakthroughs. On today’s episode, The debate around universal injunctions and how our judicial system works. 

Today’s episode of Big Brains is supported by the Court Theatre, Hyde Park’s Tony Award-winning theater located on the University of Chicago campus. Here, timeless stories speak to today’s world. From Sophocles to Tom Stoppard, Carol Churchill to Anton Chekhov, and August Wilson to Tennessee Williams. When you’re at Court Theatre, you know you’re going to see something bold and provocative, something that will move you and make you think. You know you’re going to get a great theatrical experience unlike anything else, one that only could happen on the south side of Chicago. Reimagine what classic theater can be.

Visit Court Theater. That’s court, T-H-E-A-T-R-E.org. Well, I have to tell you, up until about a year plus ago, if I had heard the term of national universal injunction, it never registered with me. And it seems like, if I’m right, about 25 of these so- called injunctions were actually handed down in the first a hundred days of the President Trump’s second term. Is that why it sounds like to all of us we have now heard these words and wonder what in the world they are?

Samuel Bray: Yeah, they’ve definitely been a big part of the relationship between the courts and the presidency and the way the courts interact with the whole United States and all the people of US over the last decade. But they didn’t really exist for most of US history. And then they’ve really came to the fore just since the end of the Obama administration.

Paul Rand: Okay. And if I understand, you prefer, sometimes we hear about them as nationwide injunctions, but my understanding is you prefer the word universal injunctions. Is that accurate?

Samuel Bray: I think that’s a good term, universal. And so basically an injunction is when a court orders you to do something or not do something. And usually those kinds of court orders are between the parties and they could be really broad. If the court says, “Don’t infringe this other person’s patent.” The court might be saying, “Don’t infringe this other person’s patent anywhere in the country or anywhere in the world.” So that’s not the issue. What makes these different is that they tell the government, “You can’t apply this rule or norm or law against anybody. You can’t apply it universally.” So it’s not about the geographic breadth, it’s about the people who aren’t in the case. So yeah, I think universal injunction’s a good term. It’s not the one I used at first, but it’s the one the literature settled on, and I think it’s the most accurate.

Paul Rand: Okay. Now, as you mentioned, this has been kind of building for about a decade post-Obama administration. And it does seem like the current moment is really what’s brought it to everyone’s attention. So I wonder if you can talk about when did this activity really dial up and what has changed?

Samuel Bray: So there are a few things that have changed. One is that the way courts usually operate is they decide the case between the parties. And over the last few decades, and really you can trace it back to good things like Brown v. Board of Education, where the courts asserted their role in the constitutional structure and to good moral effect. There was a lot of emphasis on the courts declaring the law, and that’s good when they do it within the construct of a case, but there’s been more of an emphasis on courts declaring the law sort of independent of who the parties are in increasingly in recent cases. So that’s one development. Another development is we have a highly polarized politics right now. And so different states, red states and blue states have put a lot of money into funding solicitor general shops that will basically bring litigation against the president of the other party.

So that’s why red states sued the Obama administration so much and then turn about is fair play for the Trump administration. So things like that changed. And then one big change is presidents have increasingly relied on executive orders instead of legislation. Got it. And that’s been building over the last several administrations. Absolutely. It’s more now with the second Trump administration than ever before,

But that’s been building. So you have all of those different things, including some of those executive orders being just flagrantly unconstitutional. And so you’ve got all of these different developments happening. And then late in the Second Obama administration, the Texas Solicitor General’s Office had a really good idea to sue a good idea in a litigation sense to sue the Obama administration to try to stop an immigration policy. And they said, “This is going to make us pay more for driver’s licenses, so we want to stop the policy anywhere in the country.” And they got a district court in Texas to give them that injunction. And then ever since then-

Paul Rand: It’s been rolling

Samuel Bray: It’s been on a roll against both Republican and Democratic administrations, but increasing to a kind of fever pitch in the first year of this second Trump administration.

Paul Rand: This is not a seemingly as you’re describing, this is not a partisan issue.

Samuel Bray: So at any one moment, it’s a very partisan issue because universal injunctions are used to stop everything a Democratic president wants to do or everything a Republican president wants to do. But if you have more than four years in your memory at one time, then yeah, it’s not a partisan issue at all. It’s alternatingly partisan.

Paul Rand: Okay, very fair.

Samuel Bray: But over time, it’s a bipartisan issue.

Paul Rand: Okay. Before we get into your position, which has gotten a tremendous amount of attention, there always are two sides. And so tell me, if you can, the best argument in favor of universal injunctions as you hear people making them and why they think we so much need them.

Samuel Bray: I think there are several really good arguments for universal injunctions. 

Paul Rand: Okay. 

Samuel Bray: I think the really good arguments tend not to be the historical ones. They tend to be normative ones. So one of those is if presidents do things that are not in keeping with the job of the president, which includes to the constitution says that the president has to take care that the laws be faithfully executed. And if the president is not doing that and the president issues orders that are flagrantly unconstitutional, then the fact that the president is doing novel and creative and unconstitutional things needs a response from the courts. And so if the courts just say, “We’re going to stay in our lane, we’re going to follow what we’ve always done,” and then allow all of the innovation as it were to be on the executive side, then you get this imbalance in the constitutional force, if I can put it that way.

Paul Rand: Okay. 

Samuel Bray: So that’s one argument. Another argument is about equal treatment.

Paul Rand: Fairness.

Samuel Bray: Yeah, fairness. Part of the rule of law is that people get treated equally. So you’ve got this situation where one person sues and wins a case against the federal government, and so the federal government doesn’t get to apply this rule against her.

Paul Rand: That sounds actually okay, right? When you hear that, you think that’s logical.

Samuel Bray: You win, but then the federal government gets to apply the rule to somebody else and somebody else, just because that person didn’t have the money or resources or foresight to hire a lawyer. I mean, so it feels like the law is different for different people.

Paul Rand: Got it.

Samuel Bray: And that is intention with our commitments to equality under the law. So those are two good reasons. Another good reason is that if you, this is sort of related to the first one about the executive, is if you don’t have this, you could have situations where agencies or the executive can move fast, they know they’re going to lose in the courts, but because the losses in the courts will just be one case at a time, those can be puric losses, as it were, for them where they still win. They get through what they want, even if they lose some cases, they force the change in the industry, whatever it is. So those are all reasons why there’s definite appeal to having universal injunctions.

Paul Rand: Okay. You’ve been arguing for at least a decade or around a decade, I would guess, against these types of universal injunctions. Can you, in as simple as terms as possible, explain your court case?

Samuel Bray: Sure. There are a couple different ways to go at it. Let me give it in three layers. So one is, what’s the job of a court? The job of a court is to decide the case for the parties. Now, along the way, it has to say what the law is, but that’s its job. So once the court has decided the case for the parties, there’s nothing left for it to do. It’s not its job to go decide other cases that haven’t been brought and give remedies to other people who aren’t before the court. So one part of the answer for me is just like what it means to be a court.

Paul Rand: How do you distinguish those that actually arguably could be of benefit across a full society versus just the individual that brought the case?

Samuel Bray: Well, we have devices in the law for bundling lots of cases together to say, “This is a question we need to decide once, not piecemeal.” And the main way we do that is with something called the class action. And there are rules for determining if this is a good fit for a class action and if the people bringing the case are the right ones to bring the case for the whole class. So we have ways of doing that, but what the universal injunction is, is it’s an end run around those. It’s where we say, “We’re not going to meet the requirements for a class action, but let’s just go ahead and give me as an individual plaintiff or one state or coalition of states, whatever, go ahead and give me that same injunction I would get if I followed the rules and we were doing it as a class.” Okay.

So that’s one layer to the answer is what’s a court. Okay,

Paul Rand: Gotcha.

Samuel Bray: Another layer to the answer has to do with difficulties in line drawing and our hyperpartisan, hyperpolarized environment. So with universal injunctions as an option, you just have to find one judge who agrees with you.

Paul Rand: So this is judge shopping.

Samuel Bray: Exactly. It’s judge shopping. And so some people say, “Well, okay, we shouldn’t have universal injunctions most of the time, but occasionally in rare cases, we really need them.” Okay. But the rare cases thing doesn’t work because you go to the one judge who you find in the one circuit that’s most sympathetic to you. And it turns out that that judge, not from any bad motives, but just the way that judge sees the world, all of these look like really egregious cases. They all look like the rare case that needs a universal injunction. And so that’s not been able to be any kind of stopping point.

Paul Rand: We do hear this, right? And people are always talking about, well, where’s the judge and why? Tell me a little bit more. When you use this term judge shopping, what is it and why has that been such an effective strategy?

Samuel Bray: Well, in part, this is just the normal way law works. If you’re going to file a case and you’ve got a choice somewhere to file it, there’s going to be legal strategy in trying to file it in a case that has a more sympathetic judge for your claims. In a circuit where you’re more likely, if you win in the district court, you’re more likely to get affirmed. So there’s nothing necessarily wrong about that, but what the universal injunction does is it hypes up the incentives for the forum shopping really strong because if you can get a win in your case, you get a win for the whole country.

Paul Rand: Got it.

Samuel Bray: And so it tends to exacerbate these partisan dynamics because if you don’t have universal injunctions, then the way this plays out is a judge rules for you in one case, it goes up, the court of appeals agrees, that’s the precedent for that part of the country. But for another part of the country, another court might reach a different decision. And it’s a patchwork. It’s a little slow, but then there are epistemic advantages to this because when it gets to the Supreme Court, the Supreme Court has had different courts reach different decisions in different directions, and it gets to be informed by those decisions. So I like to compare it to the carpentry adage, measure twice, cut once.

Paul Rand: Okay.

Samuel Bray: It takes a little longer, but the cuts are better, so that’s part of the idea.

Now, the third layer of this for me is that injunctions are part of the law of equity. We don’t have, for the most part in the US, separate courts of law and equity, Delaware Court of Chancery, the business court there is a separate court of equity, but for the most part, we’ve combined the courts. But the way the federal courts work is they still think of equitable remedies like the injunction as being in a kind of family line, and that means special powers, but it also means special limits. So along with these special powers, like the pretty awesome power to order somebody not to do something or they’re going to go to prison, along with those special powers go special limits. And once you think about the history of equity with those powers with those limits, then part of respecting the limits is to say, unless this is one of those cases where we’re going to bundle everything together in a class action, then you really do need to respect that you’re giving a remedy for these parties and not go outside the bounds of the case.

Paul Rand: If you’re interested in learning more about the world around you or just yourself, check out another U Chicago podcast titled Knowing. Every week, Professor Eric Oliver interviews writers, academics, artists, and other interesting people about the ideas they’re generating to help us better understand the world. Stop guessing and start knowing what it’s all about with knowing, part of the University of Chicago Podcast Network. Of all of those worries, which one concerns you the most?

Samuel Bray: For me, it’s the first one, which is a court acting as a court that I think it’s just part of our system that what makes our system special and gives us the rule of law is for courts to continue to act in a judicial way. Now, they need courage, they need backbone, they need integrity, they need to be willing to stand up to the president and Congress when they don’t act according to law, but it’s easiest for them to do that if they keep deciding cases. And so for me, there’s an important aspect of the durability of our constitution and the rule of law to keep this dispute focused model of the judiciary.

Paul Rand: Okay. I imagine people at this point are listening and some are thinking, “Wait a minute, wait a minute. Without these injunctions, real people are going to get hurt while the courts are slowly working things out. “What do you say to that?

Samuel Bray: So I say that’s partly right, but not 100% right.

Paul Rand: Okay.

Samuel Bray: So let me start with the part that’s not right. Okay. And I’ll get to the taking the bitter with the sweet. So the part that’s not right is we do have devices like class actions for lots of cases. So for example, there’s a class action filed against the birthright citizenship executive order, and that’s good. And there should be a class action against it, and that means it’s not gone into effect. And I don’t think it’s ever going to go into effect because I think there’s no chance of the Supreme Court agreeing with the president on birthright citizenship.

So we do have devices like that. And the Supreme Court has even this past year approved the use of injunctions to protect the class while the court is taking the time to work on whether or not to certify the class. So we have some protections like that, but that’s not going to happen in all cases because there are cases where the executive can act quickly, act illegally, and the courts are just slower to respond because that’s just part of the difference between the executive branch and the judiciary. The judges have to wait till people bring them cases, they have to have briefing, it takes a while, so they have to do that. So that is going to be the case. But I also think that if you have judges just respond immediately, you say, “Let’s have zero tolerance for any delay in solving all problems of legality.” The first judge who gets it decides it immediately, instantly, universally for everybody.

First, that’s not the way courts work. That’s not very good. They tend not to do their best work when you say like, “Okay, give me your 30 minute answer as opposed to your monthly.”

So partly it’s that. Partly the problem is when you combine that with the partisan divisions and the courts and the prospect of picking your own forum and your own judge, it winds up meaning that you can select the court that’s going to make that call for everybody really fast. And then there’s just not a very good track record of those holding up on appeal all the way through the Supreme Court. So if we really were getting the first judge who makes the decision, everybody winds up agreeing that’s the right decision, then it’s easier to make the case for why not get to the right decision right now, but we don’t know that. And it’s very hard to assess that in the abstract apart from how court decisions fit into the ideology of our politics now.

Paul Rand: This is not just a legal technicality. It does materially impact how our democracy works. I

Samuel Bray: Think that’s right. And I think one more way it does that that we haven’t talked about is over the last 10 years, there’s also been the rise of what’s called the shadow docket or the emergency docket for the Supreme Court. And that’s where the Supreme Court, without doing its normal full dress argument and briefing, just on a more rapid basis, decides some question that’s in the lower courts. I think that the rise of that shadow docket or emergency docket or interim docket goes by different names. I think the rise of that has been very closely related to the universal injunctions rise because when you have district courts, one court making a decision for the whole country, the Supreme Court then feels much more of a sense of rush and urgency to jump in. And the Supreme Court doesn’t do its best work when it’s doing those cases on that rushed process either.

And that then injects the court into political questions much quicker. And I think they tend to do their best work if they take more time, like in the tariff’s decision.

Paul Rand: Can you add another level of clarity for folks? When you talk about when a single federal judge blocks, for example, immigration policy or a student loan or environmental rules for the entire country, what does that actually mean for everyday people?

Samuel Bray: Well, it depends. It could mean relief and vindication of their rights, but there’s often a kind of asterisk to it because it’s going to immediately be appealed. Then it might be stayed by the court of appeals that says, “Wait, wait, stop. We’re going to not let you have this win yet. We got to wait.” And then that might be reversed by the Supreme Court. And you might have basically the legal regime being like some kind of just like flipping back and forth without any real continuity and then it’s unclear what the legal rules are at any particular point. So it leads to uncertainty, it leads to a sense of partisanship for the judges, and I think it’s better to get the right answer even if it takes a little more time. And by the way, for me, the tariff case is an example of getting to the right answer and taking a little more time because they did have full argument on that as opposed to the cases where they’re just deciding them really quickly on an emergency posture.

They decided it quicker than usual, but it wasn’t the, let’s turn this around in a week or two kind of thing.

Paul Rand: Absolutely. Let’s jump at the case that you’re intimately involved with and it’s Trump versus Casa. The Supreme Court cited your work more than a dozen times in making this decision, which I would think is a pretty big deal. Tell me what the case was and why your work was so featured in helping bring this decision.

Samuel Bray: Well, I’ll start with the case. So it was several different challenges to the president’s executive order about birthright citizenship, which purports to say some people born in the United States are not going to be citizens, despite longstanding precedent the other way from the courts and the president and the legislature. Okay. So several different challenges that were brought. Some were brought by individuals, some were brought by states, some were brought by organizations, the CASA organization, for example. And so the Supreme Court bundled together a bunch of these challenges, but they said, “We’re not going to consider the question on the merits. We’re just going to take up the question of whether the injunctions below, whether were not class actions, whether were universal injunctions, whether those were permissible, whether those were within the authority of the federal courts.” Now, it’s a little bit of a puzzle. Some people said, “This is a terrible case to pick to do this because the court is ignoring the illegality of the executive order.” And I do understand that concern-

Paul Rand: And frustrating.

Samuel Bray: Yeah. I understand the frustration. It’s not gone into effect because it’s been stopped by other lower courts and it’s going to the Supreme Court, but it will be, the court will consider the merits, but they weren’t considering the merits here. They said, “We’re just going to cut off this one question about universal injunctions.” And it had taken a while for the court to get there because we’d had a kind of crisis over the last 10 years. And so it’s not clear why it took so long. One answer is that maybe the justices were hoping they could come up with a middle ground where they said, “Usually you can’t get universal injunctions, but here are some especially egregious cases where you can. “ But nobody had come up with really good lines for how you can do them in just the 5% of most serious cases or anything like that.

So we were stuck with this kind of all or nothing and the courts were doing all and so the Supreme Court jumped in. Okay. So the Supreme Court in the case decided federal courts do not have the authority to give universal injunctions. They can give universal injunction or they can give injunctions that protect the parties and they can give universal injunctions that protect a class if there’s a large class bring the suit, but they can’t give an injunction for people outside the case. So that was what they held. And the court did not reach that conclusion as a matter of constitutional authority. So if Congress wants to give the federal courts the power to give universal injunctions, maybe Congress can do that, but the court said under the statutes already existing, especially one called the Judiciary Act of 1789, which is sort of like a charter for the federal courts.

Under the statutes already existing, Congress has not given the federal courts the authority to give these universal injunctions. And then the court remanded back to the lower courts to figure out what the scope of the remedy should be. And then immediately there was a class action that It protects everyone who might be covered by the executive order, so the executive order never goes into effect. And the Supreme Court, when it sent the case back to the lower courts, stayed the implementation of the executive order for a little while to give the lower courts time to work this out. And I think that was a way to make sure there wasn’t a gap in legal coverage. So the effect wound up being no effect on the executive order, but the decision about universal injunctions got decisively resolved for the whole country.

Paul Rand: Okay. If I recall this correction, Justice Barrett wrote the opinion, is that right on this? That’s

Samuel Bray: Right.

Paul Rand: Where did the court agree with your arguments?

Samuel Bray: So the court agreed with my work, especially an article in the Harvard Law Review about 10 years ago called Multiple Chancellors. The court agreed that there is no basis in the history of equity and the principles of equity for universal injunctions. So the court agreed with that. The court did not follow other parts of my argument, like the argument that it’s unconstitutional for federal courts to do this because it goes outside the judicial role. They did not adopt that argument. They said, “It’s not our job to decide the policy arguments, but we think there’s no basis in the law of equity and the history of equity for these injunctions.” So that’s where they relied most on the work I had done.

Paul Rand: Okay. Now the decision was six to three. Again, if I’m recalling this correctly, where did the dissenters or what did the dissenters get right?

Samuel Bray: So the dissenters get right. On the history of equity, they get right that equity had ways of deciding cases for large groups of people. And so part of the debate is about whether that just flows into and becomes a class action, as I think, and as the majority thought, or if we should see that as a separate and independent power for courts to give whatever kind of relief they need to for as many people as they need to. So some of the historical points like that are correct, but correctly stated as to facts, but you just disagree about the implications for the president. So there’s that. And then I think the dissenters also get right that there is a deep question about the judicial role that’s at stake. Is the core job of courts to decide questions for the whole country, or is it to decide the cases for the parties?

And honestly, our constitutional tradition, our legal tradition has some of both. These are two very well-respected views with a long lineage. I mean, I think the dispute resolution one is core to how courts operate, but there are lots of distinguished judges and scholars who think it’s the law declaration model that’s really at the core. And so one of the things that dissenters do is they highlight those stakes. Now, I think one of the things that’s odd is along with the majority opinion, which reflected, which was signed onto by all six of the more conservative justices, there were big divisions within the majority as evidenced by the concurrences. And one of the concurrences by Justice Kavanaugh actually has a lot of similarity to one of the dissents by Justice Jackson, because they both emphasize the supremacy of courts and judges and judges getting decide question for the whole country.

But Justice Jackson takes that judicial supremacy idea for all the federal courts. And Justice Kavanaugh takes that judicial supremacy idea for only nine of the federal judges. The justices on the Supreme Court. But that’s one of the things that’s really interesting here is the way that theme runs across some of the dissenters and some of the majority.

Paul Rand: Now, the ruling did not completely shut the door and there’s a loophole that’s still in here, if I understand it correctly.

Samuel Bray: There are several possible loopholes or they could be characterized that way. One is some people would say class actions are a loophole.

Paul Rand: And

Samuel Bray: There were two justices, Justice Thomas and Justice Alito who said universal injunctions are terrible. And by the way, we should also go ahead and narrow class actions. I disagree with that. I think class actions are appropriate and legitimate and they have this fundamental symmetry like you’re deciding a case for the whole class. The whole class wins or the whole class loses. It’s all one case. That’s the way it’s supposed to be. And for universal injunctions, there was always this asymmetry. It was always like, if the challenger wins, then the challenger wins for everybody. But the government, if the challenger loses, it doesn’t really matter because somebody else can challenge and get a universal injunction. So the government had to run the table. So class actions aren’t illegitimate that way. They’re a single case with the proper symmetry. Another potential loophole is there’s a federal statute called the Administrative Procedure Act that says that courts can set aside agency rules that are unlawful.

And there’s been a lot of debate about whether that allows in certain circumstances something like a universal injunction. And the court said, “We’re not touching that. We’re not deciding that in this case.” And then the court also said, “Sometimes you have to get a broad injunction in order to give complete relief to the people who brought the case.” And an example the court gives is your neighbor’s playing really loud music and it’s a nuisance. So you sue your neighbor. But the court says, if you get an injunction to stop your neighbor’s nuisance, it’s not like the court can say, “Stop playing the music loud for this one person who lives next to you, but not for everybody else.” So there will be cases where you get a broad injunction to protect the person who sues. But I still think despite those debates about how far it goes, it’s still a very decisive rejection of plain vanilla, universal injunctions.

And that’s important because those really had dominated, especially the way the courts responded to President Trump in the first year of this administration, but really Obama, Trump, Biden, Trump.

Paul Rand: What is it that you think court should be allowed to do and not do when they block a government policy? Do you have thoughts on that?

Samuel Bray: I mean, I think a lot depends on what the structure of the case is, and I think the court should be able to vindicate the interests of a class or the interests of the parties. So I think broad relief can be appropriate. And so I’m not against that at all, but I do think it’s in keeping with the role of the courts for the remedy to track the case and not be for judges to see their job as resolving the case and not their job as answering questions for the country. Now, they might have to answer questions for the country within the resolution of the case, especially as you go further up the judicial hierarchy to the Supreme Court. But I think judges need this odd combination of courage and humility. They need the humility to stay in the judicial role, but within that judicial role, they need the courage to say no, no matter what the pressure is.

And I think those two things actually go together and we shouldn’t see them as in a vicious trade-off. The courts do need to be available. They need to be a check. They need to decide cases, but they’re not going to stop all bad stuff from happening. And a democracy, I mean, H.L. Minkin once said democracy is where the people get what they want and they get it good and hard. And part of the argument for universal injunctions has been the promise of avoiding that. And that has been a promise that has been very attractive to Republicans when there were Democratic presidents, and it’s been very attractive to Democrats when there are Republican presidents. And hopefully that being off the table will return people to recognize that you have got to win Democratic politics, and that’s where the answers ultimately need to come from in improving our country.

Lea Ceasrine: Big Brains is a production of the University of Chicago Podcast Network. We’re sponsored by the Graham School. Are you a lifelong learner with an insatiable curiosity? Access more than 50 open enrollment courses every quarter. Learn more at graham.uchicago.edu/bigbrains. And if you like what you heard in our podcast, please leave us a rating and review. The show is hosted by Paul M. Rand and produced by me, Lea Ceasrine, with help by Eric Fey. Thanks for listening.