Pro Bono Work in Lieu of Nationwide Injunctions

A Call for Pro Bono Work in Lieu of Nationwide Injunctions

As appeared in the New York Law Journal July 24, 2025

Last month’s U.S. Supreme Court decision in Trump v. CASA (No. 24A884) all but eliminated nationwide injunctions as a tool to enforce constitutional and statutory rights. While Justice Amy Coney Barrett’s opinion held out the possibility of class actions as a remedy, Rule 23 has procedural restrictions that may make it, at the very least, an awkward remedial tool. As a result, we propose that law firms engage in a large-scale pro bono effort to pursue individual claims whenever appropriate to secure important rights, now that they are free to undertake such representation. This may also have the effect of exposing the flaws in the court’s decision.

Every reader of this publication knows that we are in the midst of an unprecedented assault upon the rule of law. The law Firm executive orders showed that the Department of Justice is prepared to try to discourage law firms from taking on pro bono engagements to try to fight against the assault. Now we know that, subject to appeals, the law firms who fought rather than settled have prevailed in a 4-0 series sweep. As a result, all the law firms who did not choose to settle are free to take on whatever clients and issues they wish, including in opposition to the government, which of course is essential to the rule of law as we know it.

One possibility for such representation until the last day of the Supreme Court’s term was seeking a nationwide injunction during the pendency of litigation about the legality of various policies and orders. For all the current “sturm und drang” against such injunctions, nationwide injunctions were not uncommon in prior administrations as well. Think of the controversy over the nationwide injunction that U.S. District Judge Joseph Kacsmaryk of the Northern District of Texas ordered against mifepristone, the so-called abortion drug, in Missouri v. FDA, (No. 2:22-CV-00223).

Nationwide injunctions were also entered against the prior administration in immigration, student loan and environmental matters, among others. Within the past month, Kacsmaryk struck the prior administration’s reproductive health privacy rules as beyond the HHS’s statutory authority, which while declaratory in nature, plainly has nationwide effect. (Purl v. HHS, No. 2:24-CV-00228) The fact is that nationwide injunctions have been used for well over 100 years. The real issue is against which administration the injunction is being entered, and for what conduct or policy.

There is no question that nationwide injunctions are problematic, because they allow one district judge or a single court of appeals to control conduct impacting the entire country. But in the absence of such injunctions, the incentive to continue constitutionally problematic behavior exists outside the particular district or jurisdiction in question. Inconsistent conduct and legal standards across the nation can be problematic too, and litigation can proliferate, in different districts and circuits, and even impact different parties in the same district or circuit who weren’t bound by a prior ruling.

As noted, Barrett’s opinion held out the possibility of a class action remedy. But that is an imperfect solution, as Rule 23 requires a formal class certification motion, including factual findings on issues such as numerosity, commonality and typicality. While U.S. District Judge Joseph Laplante recently issued a preliminary injunction and a provisional class certification order in a birthright citizen case in New Hampshire (Barbara v. Trump, 25-CV-244), such a motion may not be practical in a fast-moving preliminary injunction scenario, and even in a more normally paced lawsuit the motion takes time and creates procedural obstacles.

As a result, one alternative we think law Firms should seriously consider is a large-scale pro bono effort to represent individuals in separate cases similarly impacted in a fashion that, until Trump v. CASA came down, would have been covered by a broad-based injunctive remedy. The law Firm executive orders intended to inhibit Firms from undertaking such representations and seeking such relief, but in view of where those cases now stand, there are no current prohibitions. Such cases would vindicate the rule of law, Trump v. CASA notwithstanding.

Law Firms that chose to settle the executive order matters may not be comfortable undertaking such representations, viewing them as inconsistent with the terms of their settlement agreements (although no such “agreement” is actually that specific). Even if the settling Firms view such representations as problematic, at this point no other law Firm needs to see it that way.

There is no question that such litigation could grow like kudzu, and risks grinding the system to a halt. Motions to consolidate may have to be made, and the Judicial Panel on Multidistrict Litigation may become involved, like in many mass tort and other cases. The Justice Department and the country’s 93 U.S. attorney’s offices may not have sufficient resources to handle all the litigation. There are more individual lawyers, and law Firms, than there are government attorneys at any given time. That could itself assist in the vindication of important rights, and even if it proves problematic, that will help show why it is that, until recently, we had nationwide injunctions for more than a century in the first place.

Law Firms, please consider such a major pro bono effort, now that the four litigating Firms have shown you are free to do it. You’ll be vindicating the rule of law in the process. There won’t be much left to the rule of law if we can’t meaningfully challenge government actions, regardless of what administration is in power.

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Richard P. Swanson and Ronald C. Minkoff are, respectfully, the president and president-elect of the New York County Lawyers Association.

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Reprinted with permission from the June 24th 2025 edition of New York Law Journal ©2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.