Irreparability Resurrected?: Does a Recalibrated Irreparable Injury Rule Threaten the Warren Court's Establishment Clause Legacy?

Prologue: The AMI ProblemAfter a federal judge holds that an Acropolis Military Institute (AMI) official mess-hall grace violates the Establishment Clause and grants an injunction forbidding it, AMI's Commander orders an official parade-ground prayer and posting of the Ten Commandments on the mess-hall door. Fatima El-Erian, a Muslim AMI cadet, tells her French professor how deeply offensive these practices are. "Why don't you talk to a lawyer about getting an injunction?" her professor says.I. IntroductionAfter its experiment in constitutional government through courts, the Warren Court left a legacy of reform principles for lower courts to implement with injunctions. In desegregation litigation, Brown v. Board of Education1 "gave the injunction a special prominence."2 Injunctions also play indispensable roles in preventing malapportioned legislative districts3 and in the subject of this Article, preventing improper establishments of religion.4 Today, frontal assault and indirect incursion endanger many of the Warren Court's principles. For opponents of the Warren Court's reforms, "the injunction has . . . become a very special target of attack."5This Article examines what some readers may think of as a frontal assault and others may consider an indirect incursion: Judge Gerald B. Tjoflat's suggested alteration of the irreparable injury rule threshold for an injunction, which he proposed in a concurring opinion in an Establishment Clause appeal.6 In a nutshell, Judge Tjoflat insisted that a judge should approve a plaintiff's assertion of irreparable injury only when that judge can enforce the plaintiff's proposed injunction with coercive contempt.7 If the judge's only responses to a defendant's violation would be compensatory contempt and criminal contempt, the judge should conclude that the plaintiff has an adequate non-injunctive remedy and refuse to grant the injunction.8This Article contends that Judge Tjoflat's proposal is a procedural and remedial threat to the Warren Court's Establishment Clause legacy. Judge Tjoflat's redefined irreparable injury rule would, in effect, erode a trial court's ability to grant a winning plaintiff an effective remedy and confound its ability to implement basic constitutional, statutory, and common law values.The injunction is a substantively neutral remedy available to a court with equity jurisdiction to protect not only a plaintiff's constitutional rights and liberties, but also her rights under statutes and the common law of contract, tort, and property. This Article examines lower courts' remedial implementation of the Warren Court's Establishment Clause decisions and the probable effect of Judge Tjoflat's proposed alteration. The rule proposed for an establishment-of-religion injunction would, if adopted, affect all plaintiffs' requests for injunctions in the federal courts. This Article concludes that the proposal is impropitious and would affect other constitutional, statutory, and common law substantive areas.The rule of law generally requires a government to have stable rules and predictable protection for citizens' interests.9 The rule of law includes enforcement mechanisms, courts, procedures, and remedies to which people may resort when necessary to vindicate their interests against official breaches, to compensate them for past injuries, and to discourage or deter future injuries. This Article focuses on the role of courts in developing stable substantive rules and remedies to protect citizens' civil liberties. It addresses the federal courts' institutional role in administering the Establishment Clause with injunctions and examines the part played by an equitable doctrine commonly called the irreparable injury rule, but also known as the inadequate remedy at law prerequisite. To focus on the injunction, I have based this Article on Dean John Jeffries's and Professor James Ryan's prediction that the substantive doctrines in the observances branch of the Establishment Clause will be stable and quiescent. …