RODGERS v. BRYANT (2020)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judge Stras would grant the petition for rehearing en banc.

This case presents not one but two issues of “exceptional importance.” Fed. R. App. P. 35(a)(2); see Rodgers v. Bryant, 942 F.3d 451, 460 (8th Cir. 2019) (Stras, J., concurring in part and dissenting in part). The first, more complex issue is when universal injunctions are available, which depends on what remedies were in the “High Court of Chancery[’s]” toolbox when the Constitution and Judiciary Act of 1789 were adopted. Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999). I have already explained how universal injunctions were available only in limited circumstances, when the plaintiffs brought a representative-type lawsuit on behalf of a larger group. See Rodgers, 942 F.3d at 462–65 (opinion concurring in part and dissenting in part). As a fundamental question about the scope of our own powers, it is important that we address it. See Dep’t of Homeland Sec. v. New York, ––– U.S. ––––, 140 S. Ct. 599, 600–01, 206 L.Ed.2d 115 (2020) (Gorsuch, J., concurring in the grant of stay) (questioning universal injunctions on Article III grounds); Trump v. Hawaii, ––– U.S. ––––, 138 S. Ct. 2392, 2424–26, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring) (same).

But this case also involves a second, far simpler question, one that could have been a stepping stone on the path to answering the first. Sometimes, courts are too quick to universally enjoin democratically enacted laws without meaningfully considering the consequences. See Rodgers v. Bryant, 301 F. Supp. 3d 928, 936–37 (E.D. Ark. 2017); see also, e.g., Jones v. Jegley, No. 4:19CV00234 JM, 2019 WL 7811704, at *1 (E.D. Ark. June 17, 2019) (preliminarily enjoining an Arkansas law on a statewide basis based solely on the conclusion that the plaintiff was likely to win). It is not too much to ask for a bit more work—like some consideration of the public interest and the potential harm to both parties—before granting such broad relief, particularly when, as here, we are talking about a preliminary injunction. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (articulating the factors to consider in evaluating requests for injunctive relief); see also Planned Parenthood of Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc) (stating that “legislation ․ developed through presumptively reasoned democratic processes [is] entitled to a higher degree of deference and should not be enjoined lightly” (citation omitted)). The Supreme Court apparently agrees. See Benisek v. Lamone, ––– U.S. ––––, 138 S. Ct. 1942, 1943–44, 201 L.Ed.2d 398 (2018) (per curiam) (“[A] preliminary injunction does not follow as a matter of course from a plaintiff’s likelihood of success on the merits.”). This question touches on the limits on the power we wield as judges too, so it also presents a compelling basis for en banc review.

Because I believe that both questions are exceptionally important, I respectfully dissent from the decision to deny rehearing en banc.