GeoLegal Weekly #19: Politics of Venues - ICC-Israel / US Nationwide Injunctions
The ICC's accusation of Israeli Prime Minister Netanyahu and a rash of US nationwide injunctions both serve as stark reminders that legal authority exists within political boundaries.
*I rarely do housekeeping up top, but let me hit two points. First, I’m excited to be teaching at Berkeley Law’s new GC University alongside a number of top GCs and thought leaders. You can read more about it here - share with your teams and if it’s interesting, just reply to this note as my readers can enroll at a heavily discounted rate. Second, welcome to new readers who will be joining me, and many top GCs and law firm partners, in person in London on 12 June for a two hour GeoLegal Risk deep dive with some awesome speakers - if you want to join, register via the link or just let me know.* Now back to the good stuff…
Forum Shopping
If you want to win in court, you should probably find a court where you can win. This may seem second nature to attorneys accustomed to shopping for venues where they will get a fair hearing - or better. In some cases, this involves playing politics and in egregious cases this involves trying to place fingers on the scales of justice. There’s even software that can help you do this.
A set of seemingly unrelated events at the international and US national level, however, underscore the fact that overplaying one’s hand can lead to collapse of institutional trust and political neutering.
ICC Indicts Israel and Hamas
On Monday, ICC Chief Prosecutor Karim Khan applied to the court’s three judge panel for warrants to arrest Netanyahu, the Israeli Defense Minister, as well as Hamas leadership over separate charges of war crimes.
Watch the ICC Prosecutor’s statement here
Israel itself is not a party to the ICC’s Rome Statute, though Khan asserts jurisdiction over Gaza and the West Bank because the UN recognizes that the Palestinian government acceded to the Rome Statute in 2015. My place is not to judge who has committed crimes against humanity, but rather to try to understand the politics around the charges and the subsequent reaction.
A court derives its legitimacy from those it governs, who rely on it for impartial judgment and bolster an infrastructure of law enforcement and political support to ensure it can serve its function. The problem with international courts is that the “governed” are nation-states who tend to support the institution when it is favorable to them and undermine its support when it is not. It was not long ago that the US applauded the ICC for issuing arrest warrants for Russian President Vladimir Putin.
The ICC, by indicting Netanyahu, has chosen ideals over political reality (which you could argue is the reason it exists). As I outlined in my 2024 GeoLegal Outlook, a number of countries like the Philippines or South Africa have withdrawn or started to withdraw from the ICC in recent years. Major powers like the US, China, and Russia stand outside its jurisdiction. The direction of geopolitical travel is very much against international institutions and rules in a “revenge of the nation-state.”
One way to hasten the collapse of existing institutions is to force members to decide whether or not to choose the institution over power politics played by some very important friends. An arrest warrant issued by the ICC would compel the 124 signatories to arrest two of Israel’s top government officials if they were to ever set foot in their territory. Of course, many of the signatories have staunchly supported Israel in the wake of the 7 October attacks. Countries like France and Belgium have reacted by supporting the independence of the court yet may shift views if they are compelled to act on an arrest request. But the EU is divided, with Germany condemning the action. Smaller nations will no doubt come under strong US pressure not to act on any warrant if it were issued. And, just as importantly, military supporters of Israel’s counteroffensive would worry about their own culpability if this is a route the ICC continues down.
Thus, if the three judge panel issues such warrants in coming weeks, I suspect a number of countries will withdraw or threaten to withdraw from the ICC. The US Congress and Biden administration is already threatening legislative action against the ICC - perhaps echoing a previous attempt to sanction ICC prosecutors and staff members with asset freezes. In international affairs, institutions don’t die, they fade away. While the ICC has persisted amid political challenges before, this could hasten its fade to black.
US Nationwide Injunctions
What do ICC indictments over crimes against humanity have to do with a Texas judge ruling on abortion pills and gun rights? The fact that over-use and over-reach of legal tactics awakens political forces whether in The Hague or the US.
Generally speaking, if you don’t like a law in the US, you can lobby to change it. Or you can file a court case that may eventually work its way to the Supreme Court such that the law can be struck down. But, as the kids say, there’s a cheat code: Judge-mandering!
OK I didn’t invent judge-mandering (I’m not even sure I’d want credit for it.) But a recent piece in The Economist laid out the case that America’s trust in the judiciary is taking a hit as a result of the fact political interests are increasingly going to districts in the US where they can be sure of getting a politically sympathetic judge and filing cases to effectively strike down rules by getting a nationwide injunction.
Ah, but judges should only be offering relief to the parties to the case, you might say. Well, what if relief cannot exist until the law is stopped in full? Professor Amanda Frost gave the following example of a case in Judicature where nationwide injunctions might be necessary because there is no other way to provide relief to injuries:
If an African American plaintiff challenges a segregated public school system, granting an injunction requiring the defendant school system to admit the plaintiff only, and no other African American child, would not alleviate the plaintiff’s injury.
This and other good reasons are why nationwide injunctions exist. But as with most tools in today’s politically divisive world, these injunctions are being weaponized.
According to a recent study in Harvard Law Review, there were only 18 nationwide injunctions during the Bush and Obama years and there was no real evidence of partisan abuse. In the Trump years, there were 64 total nationwide injunctions, which were almost entirely issued by Democrat-appointed judges. Since Biden took office, there have been 16 injunctions, all of which were issued by judges appointed by Republicans.
School-house Rock may teach us how a bill becomes a law. But a law (or an executive order / regulation, which is usually what these are used against) now stops being the law when a single federal judge decides they want to halt a new government policy.
The Judge-Shop is Closing
It takes a lot to rouse Congress from its slumber, but at some point an insult to the legislature is so great that lawmakers decide to do something. While their remedies and diagnoses of the problem are different, it’s striking to see Senate Majority Leader Charles Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY) introduce dueling bills to deal with judge shopping in recent weeks.
Now as a business leader, you might wonder why you should care. I’ll give you a few reasons.
First, businesses generally appreciate stability and a world where one can wake up to laws and regulations being instantly wiped away does not provide that. Of course, to the extent that injunctions are used to stop new laws from being put in place, this can serve as a stabilizer - but it introduces a ton of uncertainty in the process. As congress remains gridlocked, there are more executive actions and regulations that are then ripe for these types of challenges (Saturday Night Live’s parody of School House Rock below is instructive on this!)
Second, anything that undermines the credibility of the judiciary in America undermines all of the rules that rest on it.
Third, actions that stoke culture wars, as many of these injunctions do, can fan flames that singe businesses in the process.
Finally, once Congress starts trying to solve problems, weird things happen. For instance, the issue with nationwide injunctions is turning into a wholesale debate about judge-shopping more generally.
Schumer’s bill echoes a policy proposal by the Judicial Conference (an administrative body overseeing federal courts headed by the Supreme Court Chief Justice) and basically leaves nationwide injunctions in place but tries to randomize the assignment of judges to cases. McConnell’s bill, however, proposes neutering the practice so that injunctions can’t go beyond the parties to the case or others in the district. And, crucially, he outlines rules that would make judge-shopping grounds for disqualification in federal court and fundamentally restricts venue shopping for patent cases and bankruptcy cases (the latter of which has attracted a lot of attention in recent years as a flurry of bankruptcy cases migrated to Houston before a scandal erupted there).
Where do things go from here
I tend to think of nationwide injunctions as similar to (though not exactly the same as) the filibuster or the Electoral College. Both of these institutions are arguably undemocratic relics that empower different parties at different times in different ways. Depending on where one is in the cycle, they can be empowering or they can be deeply problematic for the ruling party or the opposition. The problem is that a two party system is cyclical and getting rid of stabilizers in the system might benefit you today and crush you tomorrow. So politicians typically rail against them when convenient but don’t actually remove them.
Both Schumer and McConnell are playing cynical political games in their proposal. Schumer’s proposal to randomize judge assignment has been accused of being a play to make it harder to get injunctions in conservative states but not in liberal states. McConnell is likely interested in getting rid of nationwide injunctions as the Supreme Court already leans his way, but a future Trump administration’s agenda could get really mucked up by use of the strategy by Democrats in a couple of years. Of course, a byproduct of this is that the US could be further balkanized into a patchwork of administrative rules that are applied in some parts of the country but not others.
I think it’s unlikely either of these bills progress on their own or any time soon. But now that they have surfaced, we need to prepare for them to be tacked onto must pass legislation - like the TikTok ban a few months ago. And since the proposals have been made to bring bankruptcy and patent law into the fold, the possibility that such concepts become law has risen from hard-to-imagine to quite possible.
And, finally, of course the Supreme Court could take it on.
writes for Bloomberg Law thatAt least five justices would probably be sympathetic to a challenge to universal injunctions: Gorsuch, who wrote critically about them in Labrador; Justices Clarence Thomas and Samuel Alito, who joined the Gorsuch concurrence; Justice Brett Kavanaugh, who wrote a nuanced concurrence, but acknowledged that “prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law”; and Justice Amy Coney Barrett, who joined the Kavanaugh concurrence. (The three liberal justices dissented in Labrador—but even Justice Ketanji Brown Jackson, in a dissent joined by Justice Sonia Sotomayor, wrote that she “share[s] the concern that courts heed the limits of their power.”)
This space is particularly worth tracking. Earlier this week, a judge in Texas declined to issue a nationwide injunction on gun background checks and took a more limited approach. An excellent episode of the Advisory Opinions podcast posits around the half hour mark that this restraint may precisely because the Supreme Court is threatening to take away the tool of nationwide injunctions if they keep being used for political purposes.
In Other News
New York Tries to Change Sovereign Debt Rules: Because a lot of emerging market sovereign debt is issued in New York, the state controls how litigation between investors and foreign nations plays out. A new bill is targeted at holdouts in negotiations rather than sovereign debt rules more broadly (against which the broader investment community erupted when a bill was proposed previsouly), so seemingly has a better chance at passage.
Israel and Europe Tensions Deepen: I highlighted above that a few European countries are backing the ICC efforts to indict Israeli leadership. Piling on to Israel/Europe tensions on are Spain, Norway and Ireland who have today backed Palestinian statehood and have had their ambassadors recalled.
Trump verdict could come next week: Closing arguments in former US President Donald Trump’s hush-money trial will come early next week shortly after which a jury will consider the case. Given the 34 charges, outcomes of any guilty verdict could range from decades in jail to no jail time at all. To my mind, only an acquittal would limit the political fallout of the case - no doubt Trump would rail against the experience on the campaign trail but the US election cycle would shift back to politics as usual. A guilty verdict or even a hung jury will elicit claims the trial was unfair or politicized. The former might put us in unknown territory (can Trump run for President from jail?) while the latter would throw it back to prosecutors to decide what to do next.
Thanks Dan Currell,
and Mia Tellmann for contributions to this piece this week.-SW