Intervention and Universal Remedies

Monica Haymond

Assistant Professor of Law, Northwestern Pritzker School of Law.

For helpful comments and discussions on this Article, I am thankful to Payvand Ahdout, Rachel Bayefsky, Judge Stephanos Bibas, Josh Bowers, Upnit K. Bhatti, Sergio Campos, Maureen Carroll, Guy-Uriel Charles, Zachary Clopton, I. Glenn Cohen, Ryan Doerfler, Richard Fallon, Jonathan Gould, James Greiner, Andrew Hammond, Judge Adalberto Jordan, Brian Lipshutz, Caleb Nelson, Andrea Olson, Richard Re, William Rubenstein, Stephen Sachs, Joanna Schwartz, David Simon, Susannah Tobin, and the participants in workshops at Harvard Law School, the Annual Civil Procedure Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Junior Faculty Federal Courts Workshop, and the Association of American Law Schools Remedies Workshop. I am also grateful to the editors of the University of Chicago Law Review for their invaluable editorial assistance.

Download PDF

Civil procedure plays a pivotal role in shaping litigation, including some of the most divisive and politically consequential cases heard in federal court—those seeking nationwide injunctions to block federal policies. But we know very little about how such cases are actually litigated. It is often assumed that procedural rules, crafted to apply to many types of cases, work equally well in the nationwide-injunction context. This Article challenges that view. In fact, procedural rules are having a critical substantive effect on the outcomes of these cases. And they are undermining the very values they were designed to serve.

This Article examines over five hundred nationwide-injunction cases and shows that a surprising participant is influencing the results: an outsider who has joined as an intervenor. Intervenors can stand on equal footing with the original parties, so a decision to grant or deny intervention has real-world stakes for the entire life cycle of a case. Judges also have an immense amount of discretion to allow an intervenor to join. That discretion has led to intervention in nationwide-injunction cases being common, contested, unpredictable—and enormously consequential.

Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. What’s more, intervenors can keep cases alive even after government officials have withdrawn, thereby increasing the odds that high-stakes, politically salient questions will be resolved by the courts rather than the democratic process.

This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. And it analyzes how procedural rules influence notions of judicial neutrality and judicial minimalism. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation.

TABLE OF CONTENTS

Introduction