Justices Kavanaugh And Barrett’s Shadow Docket Concurrence In The Hamburger Mary’s Case

Florida enacted a law that prohibits restaurants and bars from showing “adult live performances” to children. A restaurant in Orlando named Hamburger Mary’s challenged the law on First Amendment grounds. The District Court agreed, and enjoined the state from enforcing the law against Hamburger Mary’s, and any other entity. In other words, the court granted relief to non-parties. This was a universal injunction. (See Howard Wasserman’s post from July.) The Eleventh Circuit denied a stay pending appeal. Florida sought partial relief from the Supreme Court. Specifically, the state asked the Supreme Court to limit the relief to Hamburger Mary’s.

The Supreme Court denied Florida’s application. Justices Thomas, Alito, and Gorsuch would have granted the application, though they did not provide any reasoning. Justice Kavanaugh wrote a three-page concurrence, which Justice Barrett joined, with the exception of a footnote–more on that footnote later.

There is some good, some bad, and some ugly.

At the outset, I will provide some praise of the concurrence. (I always try to give credit where it’s due). Justice Kavanaugh acknowledges that in the abstract, Florida’s request has merit:

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. [FN1]

Justice Kavanaugh is exactly right here. Lost in the debates about nationwide injunctions and “set aside” under the APA is the more fundamental question teed up by Jonathan Mitchell’s canonical article: what aspect of the judicial power allows judges to grant relief to non-parties? And don’t say equity. This is an issue on which most judges would rather not address. The Florida district did not certify a class of all similarly-situated businesses. Rather, it purported to grant relief to non-parties based on the overbreadth doctrine. (The overbreadth doctrine is already on a death watch.) Jonathan Mitchell has proven that courts cannot “strike” down statutes, as if they had a writ of erasure. Whole Woman’s Health v. Jackson is proof of the genius’s work. So what gives courts the power to grant relief to non-parties? Justice Kavanaugh and Barrett tell us the answer is open. And this issue could warrant review in the future. Amen! This issue is far more important than arcane debates about nationwide injunctions against the federal government.

Next, we get to Footnote 1, which Justice Barrett did not join. It is long, so I’ll break it up into three sections.

First, Justice Kavanaugh takes a side in the longstanding debate over APA Section 706 and “set aside.” Specifically, he concurs with Mila Sohoni, and in the process, disagrees with Sam Bray. Justice Barrett, a former colleague of Bray, disagrees with Kavanaugh on this point.

¹ Importantly, that issue is distinct from the issue of a court’s setting aside a federal agency’s rule under the Administrative Procedure Act. The APA expressly authorizes a court to “hold unlawful and set aside agency action” that violates the Act. 5 U. S. C. §706(2); see M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1173 (2020)(“The term ‘set aside’ means invalidation—and an invalid rule may not be applied to anyone” (footnote omitted)).

Second, Justice Kavanaugh, an alum of the D.C. Circuit

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