50. What Justice Alito Gets Right in Murthy v. Missouri

In dissenting from the Supreme Court's unexplained stay of a district court injunction, Justice Alito correctly focused on the importance of "irreparable harm"—and then mis-analyzed it.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

What was supposed to be a quiet week at the Court after the end of the October argument session turned into a busy one, with full Court rulings on five emergency applications, including two grants of emergency relief and two rulings provoking public dissents.

First, on Monday (after a pretty tame regular Order List), the Court granted the Biden administration’s application to vacate another district court injunction against the ATF’s “ghost guns” rule. The Court had already stayed a nationwide injunction by Judge O’Connor back in August, and it seemed none-too-impressed with the efforts of Judge O’Connor or the Fifth Circuit to nevertheless block the rule as applied to two specific plaintiffs. Indeed, even though the August order had been 5-4, there were no public dissents this time around (and also no explanation of why the Court was stepping in).

Second (and third), on Thursday afternoon, the Court denied a pair of emergency applications from challengers to Louisiana’s congressional redistricting, who had sought to freeze the effect of a highly unusual writ of mandamus the Fifth Circuit had issued appearing to bar the district court from re-drawing Louisiana’s map (at least for now). Justice Jackson wrote separately to emphasize two points: That the denial of relief was by no means an endorsement of the Fifth Circuit’s behavior; and that it was with the understanding that a new map consistent with the Court’s June 2023 ruling in the Alabama redistricting case would still be able to be put into place in plenty of time for the 2024 election cycle.

Then we got a doubleheader on Friday afternoon. In the fourth ruling of the week, the Court denied an emergency application from Missouri seeking to unblock its “Second Amendment Preservation Act,” a strange state law that bars local law enforcement officials from even choosing to help federal officials enforce those federal gun laws that Missouri believes (but no court has held) to be unconstitutional. Although Justice Gorsuch wrote separately (joined by Justice Alito) to flag two specific points about the meaning of the Court’s denial on the ongoing litigation, only Justice Thomas publicly dissented.

Finally, the Court issued its much-anticipated ruling in Murthy v. Missouri—the social media “jawboning” case that I wrote about in detail in last week’s newsletter. As many expected, the Court stayed Judge Doughty’s injunction, as modified by the Fifth Circuit, in full pending appeal—and it took up the federal government’s invitation to take the case on the merits now, with full briefing and argument by next spring. Justice Alito wrote a dissenting opinion, which was joined by Justices Thomas and Gorsuch (and which is the subject of this week’s “Long Read,” below).

By my count, that leaves four emergency applications outstanding heading into what is otherwise supposed to be another quiet week for the justices (with the “November” argument session set to begin a week from today). The first is in the Florida tribal online gaming compact dispute, which I wrote about last week, and a decision in which could come at any time. And the other three are new challenges, by an array of red states, private companies, and industry groups, to the “Good Neighbor” pollution standards promulgated by the EPA earlier this year. Chief Justice Roberts gave the federal government until next Monday to respond, so we almost certainly won’t see any developments in those cases this week.

It’s worth pausing for a moment to highlight two points: First, if this seems like an unusually busy emergency docket for this early in the term, it is. Last term, the Court didn’t grant a single emergency application until November 17, and only one previous ruling had provoked a public dissent. Ditto OT2021, when the Court granted emergency relief only twice before January 1. (OT2020 was different, and arguably unique, because of the confluence of COVID and election-related disputes.)

And for those who are paying increased attention to the relationship between the Court and the Fifth Circuit (and especially between the “middle” of the Court and the court of appeals), it was another revealing week. Both grants of emergency intervention gave the Biden administration relief that the Fifth Circuit had refused to provide. And although we can’t know the votes for sure, we know that at least two of the Chief Justice, Justice Kavanaugh, and Justice Barrett voted for the stay in the social media/jawboning case. It’s hard to dispute that there’s growing evidence of a pattern here—with the Roberts/Kavanaugh/Barrett trio regularly being asked to, and agreeing to, rein in the excesses of the nation’s most right-leaning court of appeals.

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The One First “Long Read”: To Stay or Not To Stay

I’ve been fairly critical, both in this newsletter and elsewhere, of Justice Alito’s … inconsistent … approach to emergency applications. I don’t mean to single him out, but it’s increasingly the case that Justice Alito writes dissenting opinions in these cases as much as (if not more than) anyone else on the Court—and those dissents can be, quite obviously, measured against his opinions and his votes in other cases. So it may not be that Alito is uniquely inconsistent; but his inconsistencies are, at the very least, uniquely visible. To take some examples, consider his dissents in the NetChoice case; the Yeshiva University case; the West Virginia transgender athlete case; and the mifepristone case. (I wrote in some detail about the mifepristone dissent.)

Against that backdrop, my initial reaction to his dissenting opinion from the Court’s unexplained ruling on Friday in Murthy v. Missouri (which put on hold a district court injunction against various contacts between senior executive branch officials and social media companies) was that it’s more of the same. But the more I read it, the more I think there’s at least some stuff in there that’s worth highlighting—as part of a broader push to get the Court to spend more time reflecting on exactly what it’s supposed to be doing when it considers an application for a stay pending appeal.

Let’s start at the beginning: The Supreme Court’s power to issue a stay of a lower-court ruling pending appeal is specifically codified in 28 U.S.C. § 2101(f), which dates back to the Judiciary Act of 1925. (The Court had statutory stay authority before 1925, but only (1) under more specific statutes, such as in death penalty cases; or (2) under the more general terms of the All Writs Act.) The justices have long interpreted § 2101(f) to condition a grant of a stay on a balancing of four “equitable” factors:

1. A reasonable probability that four justices will consider the issue sufficiently meritorious to grant certiorari;

2. A fair prospect that a majority of the Court will vote to reverse the judgment below;

3. A likelihood that irreparable harm will result from the denial of a stay; and

4. In close cases, whether the “public interest” supports a stay.

One of the critical points here is that success on the merits is just one of the criteria that is supposed to factor into the Court’s analysis. It might be the most important criterion (as the Chief Justice appeared to suggest with regard to preliminary injunctions in a 2008 majority opinion). But “balancing the equities” is supposed to also factor into the decision whether to grant or deny emergency relief.

The problem that has arisen in recent years is the Court’s lack of … consistency … in even articulating, let alone applying, this understanding. For instance, the Court’s January 2022 decision blocking OSHA’s vaccination-or-testing rule for large employers, after summarizing the competing claims of irreparable harm, simply asserted that “It is not our role to weigh such tradeoffs.” And an April 2022 grant of a stay in a Clean Water Act case in which Louisiana had waited five months to even appeal led Justice Kagan (joined not only by Justices Breyer and Sotomayor, but also by Chief Justice Roberts) to complain that the majority (again, including Justice Alito) had effectively eliminated irreparable harm from its analysis—which “renders the Court’s emergency docket not for emergencies at all. The docket becomes only another place for merits determinations—except made without full briefing and argument.”

Against that backdrop, consider Justice Alito’s dissent on Friday, and its paean to the importance of irreparable harm:

Under a straightforward application of the test we use in deciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). A stay is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction).  Thus, the Government in this case must make a “clear showing” of irreparable harm.  And to do that, it is not enough to “simply sho[w] some ‘possibility of irreparable injury.’”  Nken v. Holder, 556 U. S. 418, 434 (2009). A mere “‘possibility’ standard is too lenient.”  Id., at 435 (quoting Winter, 555 U. S., at 22).  Instead, the Government must prove that irreparable harm is “likel[y].” Hollingsworth, 558 U. S., at 190.  Here, the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.

I’ll get to whether the Biden administration made a showing of irreparable harm in a moment. But it’s worth emphasizing Justice Alito’s insistence that this was a showing the government had to make. He might be deploying that view selectively, but at least here, he’s 100% correct. And one of the biggest problems with the Court’s continuing unwillingness to write anything even when a majority of justices votes to grant emergency relief is that we have no understanding of why the Court believed that these traditional criteria were satisfied in this case. Thus, in chastising his colleagues for saying nothing, and in insisting on holding the federal government to a meaningful showing of “irreparable harm,” Justice Alito is, in fact, endorsing two of the more significant critiques of my book (even if his prior behavior helped to inspire them). So far, so good.

Where I part ways from Justice Alito is over why he believes the federal government failed to show irreparable harm. His basic complaint is that the harm the government fears is all going to take place at some point in the future, and is thus too speculative to support emergency relief. In his words, “the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. But hypotheticals are just that—speculation that the Government ‘may suffer irreparable harm at some point in the future,’ not concrete proof.”

Again, one could make a fairly loud charge of hypocrisy here. To take just one example, Justice Alito was in the 5-4 majority in the Court’s November 2020 decision in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court issued an emergency injunction pending appeal to block New York COVID restrictions that weren’t then in effect, because there was at least a chance that the governor would reimpose them on a whim without adequate opportunity for judicial review before the restrictions would cause harm.

But even on a blank slate, there’s one critical feature of this case that I wrote about last week and that’s entirely missing from Justice Alito’s analysis: The injunction in this case is a prior restraint of speech. It’s not a freeze on some federal policy or a block of enforcement of some federal statute; it literally bars an array of government officials from communicating in various respects with a wide range of private entities going forward. You might think that the injunction is warranted (i.e., that the government’s behavior justifies this kind of judicial intervention), but the notion that the injunction is not harming the government by restraining (and chilling) the speech of such a broad array of senior government officials is … difficult to take seriously.

Put another way, irreparable harm in a prior restraint case is in an entirely different analytical category than irreparable harm in cases in which the government is blocked from exercising some kind of enforcement power. And Justice Alito’s complaint about the hypothetical nature of the examples proffered by the Solicitor General drives home the point: By the time there would be real and concrete examples of speech that executive branch officials declined to engage in because they reasonably feared the possibility of contempt, it would be too late; the irreparable harm would have occurred.

Alito tries to account for this exact problem, but with a proposed remedy that all-but drives home the central problem. As he writes, “I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm, the Government can apply for relief at that time, including, if necessary, by filing an emergency application here” (emphasis mine). In Alito’s view, “Such an order would fully protect the ability of Executive Branch officials to speak out on matters of public concern.” But unless he’s envisioning some kind of instant judicial review, the executive branch official’s speech would be chilled for however long it takes the courts to conclusively establish that it should not have been. Again, one might think such harm is justifiable. What can’t be gainsaid is that it’s irreparable. (Consider, for example, an executive branch official worried about risking contempt by encouraging social media sites to not spread disinformation or misinformation about the ongoing hostage and humanitarian crises—and the broader hostilities—in Israel and Gaza. We really want that official to have to file a case-specific appeal with Judge Doughty, the Fifth Circuit, and then the Supreme Court before they can even speak?)

Maybe there’s an argument that, even with the irreparable harm the injunction inflicts on the government, the balance of the equities would still have militated against emergency relief here. Such an argument could have, among other things, played up the irreparable harm to others from freezing the injunction, along with perhaps a strong view of the plaintiffs’ likelihood of success on the merits (including, it should be said, their standing—which is not exactly a given here). Indeed, it’s more than a little surprising that Justice Alito had nothing at all to say about the merits of the injunction. Perhaps the three dissenters could not agree on what such a discussion would have looked like.

But of all of the arguments that could have been deployed to justify denying the Biden administration’s emergency application in Murthy, a lack of irreparable harm is almost certainly the weakest one—because of the nature and breadth of the injunction (in both its substantive scope and the range of defendants to whom it applies) from which the federal government was seeking a stay.

Of course, it sure would’ve been nice if the majority had said so for itself. More fundamentally, Friday’s ruling helps to underscore why it’s so important for the whole Court to get back into the (statutorily required) habit of taking irreparable harm (and all of the criteria for emergency relief) seriously.

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SCOTUS Trivia: Who Was the Youngest Justice?

32 years ago today, Justice Clarence Thomas took the two oaths of office, joining the Supreme Court at the age of 43 (and change). Thomas was the youngest justice to ascend the bench since Justice William O. Douglas was confirmed at the age of 40 in 1939. Douglas is one of only eight justices who joined the Court prior to turning 43—and is the only one of those eight who did so after the Civil War.

This leads to an obvious question, but a surprisingly not-obvious answer: Who was the youngest justice ever?

I had long thought that the answer was Justice Joseph Story, who, at least according to the Supreme Court’s webpage, took the oaths on February 3, 1812—at which point he would have been 32 years, four months, and 17 days old. But one of Story’s colleagues on that very Court, Justice William Johnson, appears to have taken the oaths on May 7, 1804—when he would have been 32 years, four months, and 11 days old (six days younger than Story would be upon taking the oaths). Indeed, the Supreme Court itself seems to be unsure about this point; on the Court’s public “FAQ” page, there are questions and answers for the oldest Chief Justice; the oldest associate justice; and the youngest Chief Justice, but no entry for youngest associate justice. (The Court’s list of dates on which justices took their oaths also has a notation expressing at least some doubt about whether Story took the oaths on February 3.)

All of this is to say, the answer is either Joseph Story or William Johnson, but it’s not at all clear which one. Story is unequivocally the youngest person ever to be nominated to the Court (he was nominated in November 1811; Johnson wasn’t nominated until March 1804). But on the more significant matter of when he actually joined the bench, he may well have been only the second-youngest.

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