Justice Kavanaugh’s CASA Concurrence Moves Away From Abstractions About The Shadow Docket To Focus On The “Interim Before The Interim”
Justice Kavanaugh’s concurrence in Trump v. CASA is one of his most significant opinions to date. It ranks up there with his concurrence in Labrador v. Poe and his dissent in Calvary Chapel. In CASA, Justice Kavanaugh sketches how he views the role of the Court with regard to the “interim before the interim.” Here, Kavanaugh develops ideas that were not present in the briefing, but instead seem novel enough. That’s not to say I agree with everything Kavanaugh wrote. I don’t, as I’ll note before. But this opinion reflects significant original thought. Indeed, I thought Kavanaugh was the most prepared justice during the CASA oral argument.
At a high level, Justice Kavanaugh wants us to move beyond the abstraction of TROs and the the emergency docket. The reality is that when Presidents take executive actions, district courts will be asked to stop the policy. Kavanaugh labels this immediate period as the “interim before the interim.”
The Court’s decision today focuses on the “interim before the interim“—the preliminary relief that district courts canaward (and courts of appeals can approve) for the generally weeks-long interim before this Court can assess and settle the matter for the often years-long interim before a final decision on the merits.
Regardless of what the lower court does, the Supreme Court will settle the “interim” status as the ultimate decision-maker.
I write separately simply to underscore that this case focuses on only one discrete aspect of the preliminary litigation relating to major new federal statutes and executive actions—namely, what district courts may do with respect to those new statutes and executive actions inwhat might be called the “interim before the interim.”
This Court has therefore often acted as the ultimate decider of the interim legal status of major new federal statutes and executive actions. See, e.g., Ohio v. EPA, 603 U. S. 279 (2024); Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, 598 U. S. ___ (2023); National Federation of Independent Business v. OSHA, 595 U. S. 109 (2022) (per curiam); Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758 (2021) (per curiam); see also Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2– 3).
After today’s decision, that order of operations will not change. In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits.
I think the outrage about the “shadow docket” has run its course. The simple reality now is that lower courts serve as an effective councils of revision for every act the President ta
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