Accountability at the Court Part 3: Injunctions & The Shadow Docket
When all else fails, the least a person harmed by the criminal legal system can ask for is an order stopping the harm from continuing. Even if the person cannot obtain compensation for the damage already done via Bivens or the FTCA, at least he or she should be able to obtain the protection of federal courts and ensure that the violation ceases. That kind of order is known as an injunction. Its sole purpose is to “undo existing conditions, because otherwise they are likely to continue.” United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952).
Federal courts’ authority to issue injunctions dates back to the High Court of Chancery in England at the time of the adoption of the U.S. Constitution. See Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999). The power to issue injunctions, or “equity jurisdiction,” was codified in the Judiciary Act of 1789 and is a bedrock of federal courts. Id.
It is no surprise that injunctions are often the subject of emergency requests to the Supreme Court—filings seeking relief outside of the Court’s normal process for reviewing and deciding cases via writ of certiorari. Litigants often invoke the Court’s equitable jurisdiction when irreparable harm is imminent and there is no time for the months-long process of seeking cert., filing briefing, presenting oral argument, and receiving a decision. The Trump Administration’s actions have created a number of such emergencies. In deciding these cases—sometimes referred to as cases on the “shadow docket”—the Supreme Court has curtailed federal courts’ equitable jurisdiction in critical ways.
Consider Trump v. J.G.G., No. 24A931. In that case, five Venezuelan noncitizens sought emergency relief from a federal district court to stop the Trump Administration from declaring them members of the gang Tren de Aragua and deporting them through a novel—and illegal—use of the Alien Enemies Act of 1798 (AEA). See W.M.M. v. Trump, No. 25-10534, 2025 WL 2508869, at *18 (5th Cir. Sept. 2, 2025) (finding that “petitioners are likely to prove that the AEA was improperly invoked”). The Administration had claimed authority under the statute on the theory that Tren de Aragua had committed an “invasion” or “predatory incursion” into the United States, and either the gang itself constituted a “foreign nation” or was acting at the behest of the Venezuelan government. J.G.G. v. Trump, 772 F. Supp. 3d 18, 23 (D.D.C. 2025). The noncitizens obtained a limited form of injunctive relief called a temporary restraining order, preventing the Administration from deporting them before they even had an opportunity to be heard. Id. at 24. The D.C. Circuit refused to stay—i.e., temporarily block—the district court’s order, thus allowing the district court to halt the deportations. J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *1 (D.C. Cir. Mar. 26, 2025). In a separate writing, Judge Millett noted that the district court had done “just one thing—prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal.” Id. at *13 (Millett, J., concurring).
The Supreme Court, however, issued an unsigned order vacating the district court’s temporary restraining orders. See Trump v. J.G.G., 145 S. Ct. 1003, 1005 (2025). It did so on the theory that a challenge to removal under the AEA “must be brought in habeas.” Id. The Court reached that conclusion in two steps.
First, it cited a 1948 case called Ludecke v. Watkins, 335 U.S. 160 (1948), in which a noncitizen from Germany petitioned for a writ of habeas corpus to challenge an order of removal issued in 1946 under the AEA. See U.S. ex rel. Ludecke v. Watkins, 163 F.2d 143, 144 (2d Cir. 1947). In that case, the Supreme Court held that federal courts cannot determine whether a person is properly deemed “dangerous” by the President, or whether a declared war with a foreign nation has ended, because—“[b]arring,” or aside from, “questions of interpretation and constitutionality” —the AEA “preclude[s] judicial review.” Ludecke, 335 U.S. at 163.
Ludecke was not determinative in J.G.G., however, because as the district court had already noted, the noncitizens were raising quintessential questions of interpretation: In their view, the Administration was misconstruing the AEA’s key “terms ‘nation,’ ‘government,’ ‘invasion,’ and ‘predatory incursion.’” J.G.G., 772 F. Supp. 3d at 35. And indeed, the Supreme Court recognized that the noncitizens were “entitled to ‘judicial review’” of those questions. J.G.G., 145 S. Ct. at 1006.
Second, however, the Court invoked the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). That doctrine provides that a state prisoner cannot bring a claim under Section 1983 if his claim would “necessarily imply the invalidity of his conviction or sentence.” Nance v. Ward, 597 U.S. 159, 167 (2022). Heck concerned an effort by an Indiana state prisoner to seek relief under both Section 1983 and the federal habeas corpus statute. Heck, 512 U.S. at 479. The Court concluded that when these two statutes intersect, federal courts must give effect to the stricter requirements of the federal habeas corpus statute by requiring state prisoners to first pursue relief through a habeas petition. Id. at 480-81, 487-88. Until they do so successfully, suit under Section 1983 is barred—in a familiar Supreme Court refrain, there is “no cause of action.” Id. at 489.
The noncitizens, however, were not state prisoners, and they were not suing under Section 1983: They brought claims under the Administrative Procedure Act. See J.G.G., 2025 WL 914682, at *5 (concurring statement of Henderson, J.). And as Justice Sotomayor explained, there was “good reason to doubt that Heck’s holding about the availability of relief under § 1983 extends to Administrative Procedure Act (APA) claims challenging executive action under the Alien Enemies Act.” J.G.G., 145 S. Ct. at 1014 (Sotomayor, J., dissenting). “Indeed, in the mid-20th century, this Court repeatedly said that habeas and APA actions were both available to noncitizens challenging their deportation orders.” Id. (emphasis added).
Nevertheless, the Court concluded that “because their claims for relief ‘necessarily imply the invalidity’ of their confinement and removal under the AEA,” the noncitizens’ claims must be “brought in habeas” under the Heck doctrine. Id. at 1005 (per curiam). They could not seek an injunction; they would have to pursue a writ of habeas corpus, and they would have to pursue it in the district in which the Administration chose to confine them—in Texas. Id. at 1006. In other words, in response to one of the most remarkable and dangerous abuses of power by the Administration (to date), the Court responded by eliminating injunctions as an option for the people being targeted.
That is not all the Court did to federal courts’ equity jurisdiction. In Trump v. CASA, Inc., No. 24A884, the Court held that federal courts lack the authority to issue an injunction prohibiting federal officials from enforcing an executive order nationwide. See Trump v. CASA, Inc., 145 S. Ct. 2540, 2548 (2025). The Court did so in order to stay preliminary injunctions that district courts had issued against President Trump’s Executive Order purporting to invalidate birthright citizenship—a flagrantly unconstitutional order. Remarkably, the Court declared that while “[n]o one disputes that the Executive has a duty to follow the law,” “the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so.” Id. at 2561.
In yet another example, in Noem v. Vasquez Perdomo, No. 25A169, the Court stayed a temporary restraining order prohibiting federal agents from stopping and interrogating people without reasonable suspicion, based solely on factors such as “[a]pparent race or ethnicity” or “[s]peaking Spanish or speaking English with an accent.” Vasquez Perdomo v. Noem, No. 25-4312, 148 F.4th 656, 680 (9th Cir. 2025). The Court itself gave no reasoning for that decision. See Noem v. Vasquez Perdomo, No. 25A169, 2025 WL 2585637, at *1 (U.S. Sept. 8, 2025). Justice Kavanaugh, however, took it upon himself to defend the decision. Among other things, he called back to the Lyons case mentioned in Part 1, arguing that “plaintiffs likely lack Article III standing to seek a broad injunction” because “like in Lyons, plaintiffs have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors.” Id. at *2 (Kavanaugh, J., concurring). Never mind that one of the plaintiffs had been stopped “twice in just 10 days,” and each of the other plaintiffs were stopped, along with dozens of others, “in a single month.” Vasquez Perdomo, 148 F.4th at 674. In Justice Kavanaugh’s view, the plaintiffs were not likely to “again be wronged in a similar way,” and so they could not sue for an injunction to stop the Administration’s unlawful campaign. 2025 WL 2585637, at *2 (Kavanaugh, J., concurring). Adding insult to injury, he suggested (in a footnote) that the plaintiffs should instead have sought “damages for any unlawful action taken against them.” Id. at *2 n.2.