How Clarence Thomas Stopped Worrying and Learned to Love Nationwide Injunctions
By 
Anti-vaxx crackpots did a dozen court’s worth of venue shopping until they found a judge lawless enough to rule that the Biden administration could require federal employees to test-or-vaccinate. In theory, this is the kind of mistake appellate courts are designed to correct. But if the appellate court in question is merely the executive committee of the Texas Republican Party, the system doesn’t work:
Then came U.S. District Judge Jeffrey Vincent Brown. A Donald Trump nominee, Brown is a Federalist Society stalwart who gained notoriety for attempting to overturn marriage equality in Texas from his perch as a state court judge. When an anti-vax group called Feds for Medical Freedom asked Brown for an injunction, he looked at the hundreds of pages of reasoning produced by 12 of his colleagues and thought: I know better. On Jan. 21, in a threadbare 20-page decision, the judge declared Biden’s mandate unconstitutional and issued a nationwide injunction barring its enforcement. He provided one sentence of justification for freezing the policy in every state, including those where judges had upheld it: A narrower injunction, he asserted, would “prove unwieldy and would only cause more confusion.”
Brown’s decision was not just laughably wrong, radical, and arrogant; it was, itself, unconstitutional—a staggering violation of the separation of powers. Never before in U.S. history has a single federal judge attempted to seize the president’s authority over his own employees to such a brazen and extreme degree. The Justice Department swiftly appealed to the 5th Circuit, pointing out that Brown had “essentially nullified a dozen other district court decisions.”
On Wednesday, however, a split panel of judges refused to overturn Brown’s injunction without bothering to explain its reasoning. The two judges in the majority were Jerry Smith, a Ronald Reagan nominee, and Don Willett, a Trump nominee. Judge Stephen A. Higginson, a moderate Barack Obama nominee, penned a dissent that reflected a kind of stunned outrage. “The public interest is not served,” Higginson wrote, “by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot take the same lifesaving workplace safety measures as these private sector CEOs.”
But, of course, the issues don’t end there — the Supreme Court is supposed to protect against an lawless outfit like 5CA. But in fact the hack judges have the tacit and sometimes explicit support of the Republican Supreme Court:
Under Trump, progressive litigants sometimes filed lawsuits in a handful of courts seeking nationwide injunctions. In 2020, Justice Neil Gorsuch expressed his dismay that plaintiffs had challenged an immigration restriction in a whopping fivedifferent courts. (How naïve we were back then.) He declared that nationwide injunctions were a (likely illegal) abuse of the judicial system, “sowing chaos” and encouraging “gamesmanship.” Justice Clarence Thomas agreed. Yet over the last year, conservative judges have been flinging out nationwide injunctions against the Biden administration—and these two justices mysteriously have gone silent.
Truly an amazing coincidence! But that’s going to be life in the United States for a long time to come.