Universal Injunctions in State Courts 

In one of its final opinions of the term, Trump v. CASA, the U.S. Supreme Court sharply limited federal courts’ powers to issue so-called universal injunctions — injunctions that benefit nonparties to a particular lawsuit. The Court held that, under 1789’s Federal Judiciary Act federal courts generally cannot bar all enforcement of a law or policy, even if it is unconstitutional. Although CASA involved a federal policy (the executive order purporting to limit birthright citizenship), CASA’s holding will apply to federal challenges to state policies, too.

Whether right or wrong as a federal matter, CASA was a long time coming. Since a 1999 decision opened the door for the case’s holding, nearly every administration asked the Court to limit the availability of universal injunctions. Scholars paid attention, leading to a debate U.S. Ninth Circuit Court of Appeals Judge Milan D. Smith Jr. aptly described a “cacophonous” as early as 2013. Ripening in an era of congressional inaction, presidential policymaking, and state attorney general-driven federal litigation, this scholarship primarily concerned itself with federal policies and federal court remedies. 

But make no mistake: The debate is coming to state courts. In a forthcoming law review article, to be published in the Harvard Civil Rights-Civil Liberties Law Review, I explore how state courts can and should respond when it does. 

The current environment presents a perfect storm for state courts considering their remedial power. With federal civil rights enforcement in retrenchment, major constitutional issues are being pushed to state courts more often — and for good reason. State constitutional rights are more robust, state constitutional remedies more complete and rooted in constitutional text, and state courts are built to be more responsive to citizens’ needs. But the “gravitational force of federal law” continues to pull, and state courts need tools to avoid lockstepping.

Indeed, as state actors have started to contest universal injunctions in state courts over the last couple of years, resulting decisions show that arguments framed in the federal debate are already being repeated in state courts.

Ohio ex rel. Yost v. Holbrook presents the clearest example. There, the Ohio Supreme Court denied an emergency motion to stay a temporary restraining order against a state law banning some forms of gender-affirming care for minors. Because the case presented a poor vehicle for the issue of the scope of universal injunctions, the court did not issue a written opinion, but two concurrences grappled with the issue nonetheless. Three justices agreed that it is “important” to decide at some point whether it is “appropriate for one judge in a single county to issue a statewide injunction that goes beyond what is necessary to provide interim relief to the parties in the case.” In a barnburner of a concurrence, a lone justice described the idea of limited state equitable power as “ludicrous.” In her view, Ohio courts are constitutionally obligated to enjoin facially unconstitutional laws.

Other cases echo the Ohio justices’ debate, though the issue is presented less squarely. Dissenting from the majority of the Texas Supreme Court’s denial of a petition for review, three justices wrote about another issue relating to injunctive relief — requiring a bond on appeal — writing that the failure to require a bond may “create perverse incentives,” such as seeking universal injunctions. And a territorial court, the Supreme Court of the Virgin Islands, has suggested that concerns about universal injunctions, grounded in the federal separation of powers, are “wholly irrelevant to the Virgin Islands context” because “the Courts of the Virgin Islands are not courts of limited jurisdiction organized under Article III and possess the authority to adjudicate more than just cases and controversies.”

These cases tee up difficult questions about the nature of state judicial power. Complicated in and of themselves, these questions are made still more challenging by the development of federal law, which may blind litigants and judges to the institutional differences between state and federal courts — differences that counsel against adopting not only a federal standard but the terms of the federal debate itself. As state courts consider the scope of their remedial powers, there are at least three reasons why they should largely disregard CASA, its progenitors, and scholarship focused specifically on Article III of the U.S. Constitution.

The first is methodological: Originalism drives analysis of the federal universal injunction. In contrast to the rapid ascendency of originalism at the U.S. Supreme Court, state courts are not (necessarily) originalist. Some features common among state constitutions, such as clauses guaranteeing access to courts and legal remedies, suggest the need for a flexible, expansive approach to state remedies. And even if a state court applies originalist methods, results will vary. State constitutions were ratified at different political moments, ranging from 1780 to 2022. Only four were ratified within 50 years of the U.S. Constitution, and 10 were ratified during the Warren Court era or shortly thereafter — a period when universal injunctions unquestionably were issued.

The second is consequentialist: Universal injunctions raise pragmatic concerns for federal courts, but the same concerns are not necessarily present for state courts. The U.S. Supreme Court picks and chooses cases decided by lower courts of limited geographical scope. Thus, federal universal injunctions can prevent percolation and encourage forum-shopping, but state court judgments are unlikely to go unreviewed by a court with statewide jurisdiction. In eight states and the District of Columbia, litigants have a right to appeal to the court of last resort; in most others, intermediate appellate courts have statewide jurisdiction. And state judges generally answer to citizens at the ballot box through judicial elections and constitutional amendment powers, potentially heading off concerns about judicial policymaking.

The third involves the nature of constitutional judicial power: Does the relevant constitution allow a court to provide relief to nonparties? If the answer for federal courts is no, it will be tempting for state courts to fall in line. But to do so would be to misunderstand the differences between federal and state structures of government. Taking a birds-eye view, state power is broader in scope than federal power, and the balance of powers is less likely to be upset by judicial review when the legislative branch is not constrained to enumerated powers (which, for its part, increases the need for judicial review to protect minority interests). Textually, the federal Constitution limits federal courts to deciding “cases or controversies.” Few states have similar constitutional language, though, and state courts appropriately exercise broader jurisdiction. Further, here, too, the relative ease of amending state constitutions matters. In nearly every state, the legislature can refer a constitutional amendment to the voters, providing for a check on judicial power. 

Such differences suggest that vigorous constitutional enforcement by state courts is both more constitutionally permissible and less dangerous, even if one accepts the terms of the federal debate on universal injunctions. 

Constance Van Kley is an assistant professor at the Blewett School of Law at the University of Montana. 

Suggested Citations: Constance Van Kley, Universal Injunctions in State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Jul. 18, 2025), https://statecourtreport.org/our-work/analysis-opinion/universal-injunctions-state-courts