Justice Gorsuch’s Concurrence in Labrador v. Poe
Labrador v. Poe is perhaps the most significant shadow docket decision since the shadow docket became a thing. After endless and breathless criticism from the professoriate, the Justices are finally developing a framework for this new phenomenon, and seem to be coalescing around answers to two pressing questions. First, when should lower courts issue universal, non-party injunctions? Justice Gorsuch’s concurrence, which was joined by Justice Thomas and Justice Alito speaks clearly to this issue. And second, how should the Supreme Court review universal, non-party injunctions on the emergency docket? Justice Kavanaugh’s concurrence, which was joined by Justice Barrett, speaks clearly to this second issue. Both of these important writings reflect a lot of careful thought and attention on a matter of public concern. I will address the Gorsuch concurrence in this post, and the Kavanaugh concurrence in a later post.
The Facts and Posture of Poe
In December 2023, Judge Winmill of the District Court for the District of Idaho entered a preliminary injunction barring enforcement of Idaho’s Vulnerable Child Protection Act. For those who care about forum shopping, in the entire state of Idaho, there are three federal judges: a Biden appointee, a 65-year old Trump appointee, and Winmill, a Clinton appointee. Winmill was also the judge who presided over the Edmo case, which involved a prisoner who asserted an Eighth Amendment interest in gender surgeries. (I wrote about that case here). How this left-leaning bench happens in a deep-red state confounds me.
The Ninth Circuit panel (Wardlaw, Paez, Nguyen) denied a stay on January 30, 2024 with a three-sentence order. (You see, lower courts have shadow dockets as well.) On February 16, 2024, the Idaho Solicitor General submitted an application for a stay to Circuit Justice Kagan. The briefing was completed on March 1, 2024.
The Supreme Court’s Order
Forty five days later, on April 15, 2024, the Supreme Court issued a one-paragraph order in Labrador v. Poe. The Court stayed the District Court’s preliminary injunction, “except as to the provision to the plaintiffs of the treatments they sought below.” In other words, the Court limited the injunction to the two minor Plaintiffs: Pam Poe and Jane Doe. The vote here was either 6-3 or 5-4–it is not entirely clear where Chief Justice Roberts landed. Whatever happened here took some time–more than 6 weeks. Ultimately some compromise was crafted.
Justice Kagan would have denied the application for a stay. She did not provide any reasoning. It is curious practice to list denials of the application for a stay before concurrences in the grant of the stay. But that is the Court’s practice.
There were three separate writings: a concurrence by Justice Gorsuch, joined by Justices Thomas and Alito; a concurrence by Justice Kavanaugh, joined by Justice Barrett; and a dissent by Justice Jackson, joined by Justice Sotomayor.
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