Bonus 76: Justice Kavanaugh's Defense of the Shadow Docket

In a 13-page concurrence defending the Court's recent behavior respecting emergency applications, Justice Kavanaugh failed to engage with some of the central critiques of that behavior.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

This week’s bonus issue was prompted by Monday’s (long overdue) decision by the Supreme Court in Labrador v. Poe ex rel. Poe, in which the Court granted Idaho’s emergency application to put back into effect most of its state-law ban on gender-affirming medical care for transgender adolescents (the ban is still on hold as applied to the plaintiffs in this specific case). There was no opinion for the Court, but three separate opinions: 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). Justice Kagan publicly noted her dissent but did not provide an explanation for it; Chief Justice Roberts did not publicly note his vote at all (and therefore we don’t know whether the decision was 5-4 or 6-3).

There’s a lot to say about the debate between the Gorsuch and Jackson opinions, and I’m planning to address at least some of that in next Monday’s regular issue. But for now, I wanted to focus on Justice Kavanaugh’s 13-page concurrence—which attempts to provide a more comprehensive overview of the issues the Court is facing in emergency applications like this one (i.e., when the question is whether a state or federal law should be blocked or put into effect for the duration of a lawsuit challenging it). It is, by far, the most extensive effort to date in an opinion by any of the justices to engage with the challenges that the recent uptick in emergency applications have presented. And in at least some respects, it appears to be intended quite openly as a response to some of the more vocal critics of the Court’s behavior.

As I explain below the fold, there is quite a lot to like (and agree with) in Justice Kavanaugh’s analysis. Indeed, the opinion puts its finger quite directly on how the Court has gotten into this mess, and offers some useful reflections on the challenges judges and justices are increasingly facing in this kind of fast-paced, injunction-driven litigation. But I think the opinion has three significant problems in how it rationalizes the Court’s behavior in cases like this—which will become especially problematic if this opinion becomes the framework for how the Court’s median justices approach similar applications in the future, and which suggest that the opinion isn’t really engaging with some of the most vocal criticisms of the Court’s recent behavior.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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Folks should read Justice Kavanaugh’s concurrence for themselves. But in a nutshell, it has two different parts. Part I offers a defense of the need for the Court, in resolving emergency applications in cases like these, to assess the applicant’s likelihood of success on the merits. And Part II endeavors to explain how the Court should assess the likelihood of success on the merits. All of that seems exactly right. Whether a party is seeking a stay (or vacatur of a lower-court stay), or an injunction (or vacatur of a lower-court injunction), the relevant standards all include consideration of the applicant’s likelihood of success. Indeed, emergency relief would make very little sense at all if a party could obtain it in a context in which they have little (if any) chance of prevailing on the merits. So far, so good.

Along the way, though, Justice Kavanaugh makes three problematic moves—two in his defense of why the Court needs to reach the merits; and one in his defense of how it should do so.

Problem #1: Washing Away the Equities

Let’s start with how Justice Kavanaugh gets to the significance of the applicant’s “likelihood of success on the merits.” This passage, in particular, reinforces a claim that Kavanaugh made during the February oral argument on the “Good Neighbor” ozone pollution emergency applications:

If the moving party has not demonstrated irreparable harm, then this Court can avoid delving into the merits. But not infrequently—especially with important new laws—the harms and equities are very weighty on both sides. In those cases, this Court has little choice but to decide the emergency application by assessing likelihood of success on the merits. Courts historically have relied on likelihood of success as a factor because, if the harms and equities are sufficiently weighty on both sides, 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.

In other words, even though traditional equities balancing asks courts to ascertain which party will be harmed more by judicial intervention (or non-intervention), Justice Kavanaugh reframes those equities as effectively canceling out so long as “the harms and equities are sufficiently weighty on both sides.” (In the February argument, he briefly summarized the claimed irreparable harm on both sides, then simply asserted that “that’s a wash.”)

To me, this approach radically shifts what federal courts are doing when they balance the equities. It ought to be possible, in many (if not most) cases, for courts to decide which party will be harmed more by the two competing possible outcomes. In this case, for instance, preventing Idaho from enforcing one of its laws for some period of time seems to be in a different category of harm than allowing into effect a law that bars all transgender adolescents in Idaho from receiving any kind of gender-affirming medical care.¹ And yet, however you (or I) might balance those harms, Kavanaugh’s approach is simply to throw up his hands once both sides pass some (unarticulated) minimal threshold. In that universe, equities balancing will effectively reduce to the likelihood of success on the merits in every case in which both sides can plausibly claim any irreparable harm (and, at least at the Supreme Court, some assessment of cert.-worthiness). Not only does this distort traditional equitable analysis, but it also means that the merits will matter more in emergency applications than they otherwise ought to—which is (supposedly) the very concern that Justice Kavanaugh is trying to mitigate. Put another way, washing away irreparable harm like this only contributes to the problem to which Kavanaugh is putatively responding—the need for the Court to consider the merits in such a preliminary posture.

Problem #2: What is Idaho’s Irreparable Harm?

The problem with Justice Kavanaugh’s “that’s a wash” approach to irreparable harm is compounded by why he believes that the district court’s injunction in this case was irreparably harming Idaho: His opinion … doesn’t say. The closest it comes is the suggestion that “other parties—including the Federal Government, the States, or other individuals and businesses—often will suffer irreparable harm if the relevant government officials are enjoined from enforcing the law” during litigation challenging it. If he believes that’s true in this case (as Justice Gorsuch argues in his concurrence), it would’ve been nice for him to say so.

Part of why it’s especially troubling that Justice Kavanaugh didn’t explain why he thinks Idaho was being irreparably harmed by the injunction is because the argument that Justice Gorsuch adopted—that states are irreparably harmed whenever their laws are enjoined—has a huge hole in it. As I’ve written before at some length (including in Chapter 4 of The Shadow Docket), the old in-chambers opinions by then-Justice Rehnquist from which this argument derives rested on the “presumption of constitutionality,” which is supposed to give way in the face of colorable constitutional challenges to the underlying statutes—such as the plaintiffs’ challenge here. And yet, in an opinion that otherwise goes out of its way to respond to some criticisms of the Court’s recent behavior respecting emergency applications (“various suggestions have been made to eliminate or reduce the need for this Court to address likelihood of success on the merits when resolving emergency applications involving new laws”), Justice Kavanaugh’s concurrence has nothing at all to say about wrongly elevating the state’s irreparable harm in all cases in which a state law is blocked—one of the most central, significant, and long-criticized doctrinal moves that the Court has made in these cases since the mid-2010s.

Problem #3: To Write or Not To Write

In Part II, Justice Kavanaugh turns to how the Court ought to approach emergency application in cases like these, and opens with the helpful (and indisputably correct) observation that “the Court should use as many tools as feasible and appropriate to make the most informed and best decision. Sometimes that might mean taking more time (if available), ordering supplemental briefing, or inviting amicus briefs. In certain circumstances, moreover, the Court might benefit from oral argument or may even grant certiorari before judgment.” (This last sentence seems to confirm the suspicion that the uptick in certiorari before judgment since 2019 is a direct response to the uptick of high-profile emergency applications.)

But then Justice Kavanaugh turns to the question of whether the Court should endeavor to provide rationales in those cases, like this one, in which it grants emergency relief (one of the reforms for which critics like me have long been clamoring). And his response is … equivocal:

Opinions for the Court can sometimes be appropriate in order to explain our reasoning, as in the vaccine mandate cases, for example. That said, an opinion for the Court addressing likelihood of success on the merits for an emergency application can sometimes come at a cost. A written opinion by this Court assessing likelihood of success on the merits at a preliminary stage can create a lock-in effect because of the opinion’s potential vertical precedential effect (de jure or de facto), which can thereby predetermine the case’s outcome in the proceedings in the lower courts and hamper percolation across other lower courts on the underlying merits question. (Of course, that can happen to a lesser degree even when the Court simply issues a bare-bones order granting or denying relief.) So in my view, issuing opinions for the Court with respect to emergency applications may sometimes be appropriate, but we should exercise appropriate caution before doing so.

Leaving aside the lack of any actual effort to explain when the Court should (and shouldn’t) write, note that the only argument he offers against producing a majority opinion is the potential “lock-in effect,” which he then immediately undermines by noting that it can happen even without a majority opinion, too.

There are two reasons why this “lock-in” risk just isn’t a strong argument against having the Court write opinions whenever it grants emergency relief: First, consider the Alabama redistricting cases, in which the Court ended up affirming district court injunctions on the merits (blocking Alabama’s congressional map) that it voted to stay at the emergency application stage. The only justice who wrote in support of the emergency relief the Court provided was Justice Kavanaugh. And the only justice who switched sides on the merits was … Justice Kavanaugh.

There’s an easy and obvious way to reconcile Kavanaugh’s seemingly divergent behavior in these two rulings: At the emergency application stage, he was deciding a different question than the one the Court was resolving at the merits, as his separate concurrence made clear. If that sufficed in the Alabama cases, why wouldn’t it in others? More generally, so long as the Court is clear, in its emergency application-stage writings, that it is reaching an interim decision and not committing to a conclusive adjudication on the merits, it seems like lower courts would in turn be free to reach a different answer on the merits—all the more so if the Court took the balancing of equities seriously.

Second, Justice Kavanaugh never acknowledges the costs to the Court of not writing—which, as Justice Kagan and plenty of others have argued, are quite substantial. Granting emergency relief without providing an explanation deprives lower courts, government officials, and the public of any ability to understand why the Court acted as it did. And it makes it that much easier for the Court to come out the other way in a future case in which the only difference is the partisan valence of the dispute. Indeed, one of the central arguments I make in Chapter 7 of The Shadow Docket is that the ability to provide principled justifications for its decisionmaking, especially decisions to intervene, is one of the Court’s strongest defenses against charges of partisanship. Not writing in contexts in which the Court appears to be behaving inconsistently based upon the ideological valence of the dispute simply exacerbates that charge.

It would be one thing if the argument for not writing is expediency—that, in some cases, the Court is under too much time pressure to produce a majority opinion. But, perhaps tellingly, that’s not Kavanaugh’s argument here (nor would it have passed the laugh test; more than six weeks passed between when the briefing was complete and the Court’s ruling on Monday). Instead, Kavanaugh is left to the argument that “sometimes, we should write; sometimes, we shouldn’t,” with no rule or even norm to guide when. That’s one of the central problems with how the Court has been handling these applications—not a solution.²

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Finally, Justice Kavanaugh closes his concurrence with what, at least to me, comes off as another shot at those who have been critical of the Court’s recent behavior respecting emergency applications:

Although the volume of cases challenging new laws and coming to this Court on the emergency docket is a relatively recent development, this Court’s emergency docket—and the difficulties associated with it—are not new. The emergency docket has always existed, and both the Court and even individual Justices acting in chambers have made a plethora of important decisions for the Nation in an emergency posture.

After citing some examples, Kavanaugh reinforces this point with his closing lines: “this Court is responsible for resolving questions of national importance, even when they arise on the emergency docket. Fulfilling that responsibility will sometimes require us to assess likelihood of success on the merits in emergency cases involving new laws, as the Court has in the past.”³

If the point of this passage is to suggest that the only thing that’s new about the Court’s recent behavior is its volume, that’s just poppycock. Yes, the Court (and, before 1980, individual justices acting “in chambers”) has made a number of “important decisions for the Nation” through rulings on emergency applications. But the pre-1980 approach—in which those decisions were almost always made by individual justices and not the full Court—had two distinct advantages compared to what’s happening today: First, the Circuit Justice was able to provide a lot more process and transparency, including both regular in-chambers oral arguments and in-chambers opinions. Second, no one confused the Circuit Justice’s interim ruling for a ruling of the full Court. (The only pre-1980 example Kavanaugh cites of a full-Court ruling on an emergency application is the lifting of the stay of execution in the Rosenberg case, which was not just extraordinary, but came … with an opinion of the Court.) In other words, there are almost no examples, prior to 1980, of full Court rulings on emergency applications on “important decisions for the Nation” that came without any explanation from the Court. In the other direction, as my book documents, there are and plenty of examples of in-chambers opinions with explanations, one of which—Justice Marshall’s second opinion in Schlesinger v. Holtzman—Kavanaugh even cites.

And even from 1980 to the mid-2010s, when the Court shifted away from the in-chambers model, the overwhelming majority of full-Court rulings on emergency applications were in death penalty cases—which, whatever one might think of the underlying issues, tend not to be “important decisions for the Nation.” It’s only since the mid-2010s that we’ve seen the Court regularly hand down rulings on emergency applications with statewide or nationwide implications and without any attempt to provide a public rationale. To act as if this isn’t a recent shift is to ignore exactly what is different and problematic about the Court’s recent behavior.

And although Justice Kavanaugh’s concurrence goes a long way toward explaining why these applications tend to put the justices in a difficult position (and why the Court isn’t fully to blame for the surge in these types of applications—which is clearly correct), it does very little to actually defend the practice of handing down such rulings without any opinion for the Court besides worrying about deeply contestable (and easily avoidable) “lock-in” effects. If anything, the shortcuts it takes with respect to irreparable harm only underscore why written explanations are so critical in this context—so that we, the readers, can decide for ourselves when they are persuasive, and, as I fear is true in this case, when they are not.

1. There might be other irreparable harm arguments on Idaho’s side in this case, especially for those who fear that transgender adolescents might be harmed by gender-affirming medical care. But whatever one thinks of that argument, no justice endorsed it here.

2. Justice Kavanaugh also suggested, in a footnote, that it was more defensible for the Court to produce majority opinions in the COVID cases: “During the COVID–19 pandemic, the Court sometimes found it important to issue opinions on COVID–19-related legal questions, in part because of the widespread assumption that the pandemic would largely be over before any final ruling on the merits in the court system. Therefore, the emergency docket during the COVID–19 pandemic in essence was the merits docket as to certain COVID–19-related issues.”

Leaving aside the (inconvenient) fact that the Court specifically used at least one COVID case to reach a Free Exercise Clause question that was simultaneously part of a case before it on the merits docket, there are plenty of other contexts in which the same “now-or-never” logic would hold—such as challenges to various Trump immigration policies that were mooted by the change in administration before they reached the Court on the merits.

3. Justice Gorsuch’s concurrence includes a similar claim: “Stay motions and other requests for interlocutory relief are nothing new or particularly remarkable. In truth, they are perhaps ‘as old as the judicial system of the [N]ation.’” Again, the point isn’t that emergency relief is new; it’s that how the Court is dealing with it is.