Arizona Supreme Court Justice Clint Bolick writes:

Like a well-armed drone flying beneath the radar, the latest assault on the independent judiciary is dangerous and stealthy. A short and easily overlooked passage in Section 70302 of the behemoth budget reconciliation bill, it created hardly a ripple of attention as it passed in the House of Representatives and awaited action in the Senate.

In the past few days, however, the Senate rewrote the provision in a way that arguably makes it worse. The House version sought to severely undermine the court’s ability to enforce its judgments by finding government officials in contempt—but the new Senate replacement could make it all but impossible to obtain a preliminary injunction or restraining order against the government in the first place.

In the original House version, a single sentence buried in a roughly 1,100-page bill, would have conditioned a court’s exercise of its contempt power on requiring a bond any time a party seeks an injunction. Rule 65(c) of the Federal Rules of Civil Procedure already provides for a bond as security for injunctions. The purpose of the bond is to compensate the party being sued for any losses it incurs if it follows the injunction but eventually wins the case on its merits. Yet in cases involving constitutional rights or limits, the government (at least until recently) rarely sought such a bond. For good reason: It is a hallmark of American exceptionalism that we fight our battles in the courts rather than the streets, so the courts wanted to ensure access for citizens to defend their basic rights in the courts. [Continue reading…]