There is a lively debate underway about the degree to which District Court should be enjoining executive orders on a temporary or permanent basis. This debate is not new. In his book on The Struggle for Judicial Supremacy, Robert Jackson talked at length about the “partisanship” of the District Courts in his day that issued injunctions against the New Deal. Here is how he described that:
“‘Hell broke loose’ in the lower courts. Sixteen hundred injunctions restraining officers in the Federal Government from carrying out acts of Congress were granted by federal judges. . . . [I]n 1935-6 over a hundred district judges each had assumed the power to nullify acts of Congress. Most of these judges were conscientious and impartial. Some among them were known partisans, and to their doors business flowed. Their manner of utterance left little hope that the Government could defend with any chance of success before them.”
Jackson then quoted from various District Court opinions that denounced the New Deal in harsh language. One described “the bewilderment of the people” in supporting the New Deal. Another described “the gallant members of the American Legion,” an anti-New Deal organization.
“Such was the picture of judicial supremacy at work in the district courts of the United States,” Jackson concluded, “the point of its most reckless, partisan, and irresponsible manifestation.”
Posted by Gerard Magliocca on August 8, 2025 at 08:35 AM