Justice Kavanaugh’s Concurrence in Labrador v. Poe
Earlier, I noted that Labrador v. Poe was the Supreme Court’s most significant shadow docket decision since the shadow docket became a thing. Justice Gorsuch’s concurrence, which was joined by Justices Thomas and Alito, signals that the Court will now carefully scrutinize non-party, universal injunctions issued against state laws. Perhaps even more significant was Justice Kavanaugh’s concurrence, which was joined by Justice Barrett. Justice Kavanaugh addresses a threshold question: what are the “best processes for analyzing likelihood of success on the merits in emergency cases”?
This may be the most important opinion that Justice Kavanaugh has written on the Supreme Court. Justice Kavanaugh is laying out a unifying theory for the Shadow Docket. Every page brought new insights that reflect thoughtful consideration of a very complex topic. As regular readers know, I am often an outspoken critics of Justice Kavanaugh’s separate writings, but his Labradaor concurrence changed the way I think about the emergency docket. Coupled with his textualist concurrence in Rudisill from Tuesday, Kavanaugh may have had his most productive twenty-four hours on the high court.
I’ll break down the concurrence into eleven principles.
Principle #1: The Emergency Docket is not discretionary
Much of the Supreme Court’s docket is discretionary. The Justices can deny certiorari for the overwhelming majority of cases on the docket, without providing any explanation. The emergency docket, however, is mandatory. When an application is presented, the Court has to rule on it. Justice Kavanaugh explains:
When an emergency application comes to this Court, we must decide it—grant or deny. The Court has no authority to reject or turn away emergency filings without deciding them.
Principle #2: What is the interim status of the law while litigation proceeds?
When an application is granted or denied, the Supreme Court’s urgent decision will likely remain in effect between “one to three years or even longer” while the lower court litigation continues. Only the Supreme Court will decide whether the “law is enforceable” during that period. Justice Kavanaugh offers several examples, including West Virginia v. EPA (2016). This shadow docket decision, dated February 9, 2016, put the Clean Power Plan on hold. Four days later, Justice Scalia–the fifth vote–died. Had the case been briefed a few days later, the Clean Power Plan would have gone into effect, and likely remained in effect. But, we all know that the plan would never go into effect.
Principle #3: There will almost always be irreparable harm on both sides
When a new law goes into effect, Justice Kavanaugh observes, “the harms and equities are very weighty on both sides.” Plaintiffs will always be harmed by the enforcement of the new law. Likewise, the government will always be harmed by its inability to enforce the law. Justice Gorsuch’s concurrence pointed out:
Members of this Court have long held that, “‘[a]nytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'” Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Likewise, this Court has held that “[t]here is always a public interest in prompt execution” of the law, absent a showing of its unconstitutionality. Nken, 556 U. S., at 436.
Given these dueling harms and balanced equities, the “irreparable harm” element will seldom be dispositive. (Whenever I read a motion for a preliminary injunction, I usually gloss over the “irreparable harm” section because it is so formulaic.) As a result, Justice Kavanaugh explained, the entire analysis will usually turn on the “likelihood of success.” He wrote, “the best and fairest way to decide whether to temporarily enjoin a law pending the final decision is to evaluate which party is most likely to prevail in the end. [FN2]”
This sentence is followed by Footnote 2:
This Court has used different formulations of the factors for grantingemergency relief. All formulations basically encompass (1) likelihood of success on the merits (or a fair prospect of success); (2) certworthiness; (3) the harms to the parties; and (4) the equities and public interest. See, e.g., Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). For present purposes, I will treat likelihood of success as equivalent to a fair prospect of success. If there is any meaningful difference among the common formulations of the emergency-relief factors (which I tend to doubt), those distinctions can be explored if necessary in a future case.
Even though Kavanaugh cites the four factors from Hollingsworth, it is clear that most, if not all of the weight, turns on the first factor. The second factor, certworthiness, will be addressed below.
Principle #4: The lower courts do not receive deference on the emergency docket
In Labrador, the District Court issued a universal injunction and the Ninth Circuit declined to stay that ruling. In dissent, Justice Jackson would have given some deference to the prevailing party where both of the lower courts agreed. Justice Kavanaugh disagreed with any sort of deference. Moreover, the Supreme Court has a “responsibility to resolve major questions of national importance.” Kavanaugh explained that “a default policy of off-loading to lower courts the final word on whether to green-light or block major new laws for the several years until a final ruling on the merits would amount to an abdication of this Court’s proper role.”
I agree entirely. Questions of law are always reviewed de novo. And the Supreme Court, of all courts, has the mandate to decide these issues of national importance. And to be clear, the constitutionality of a state statute is of national importance, as states nowadays tend to copy legislation. The law at issue in Idaho exists in many other states.
Principle #5: It is difficult to define what the status quo is
In, Las Americas Immigrant Advocacy Center v. McCraw, also known as United States v. Texas, Part ∞, Justice Barrett observed that the status quo is a “tricky metric, because there is no settled way of defining ‘the status quo.'” In Poe, Justice Kavanaugh expanded on this issue.
There is no good blanket answer to the question of what the status quo is. Each conception of the status quo is defensible, but ther
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