Justices Barrett and Kavanaugh Cut The Fuse On The Shadow Docket (Updated)

Justice Barrett rewrites the standard for granting emergency relief.

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John Does 1-3 v. Mills presented a challenge to Maine's vaccine mandate for healthcare workers, which did not permit religious exemptions. This policy would go into effect on October 29, 2021. The parties sought an emergency writ of injunction pending the disposition of the cert petition. In the absence of any relief, employees who refused to be vaccinated would lose their jobs. But on the evening of Friday, October 29, the Supreme Court declined to intervene. Justices Gorsuch, joined by Justices Thomas and Alito would have granted the injunction. I will write about that dissent in another post. Here, I will address a one-paragraph concurrence from Justice Barrett, which was joined by Justice Kavanaugh.

Justice Barrett wrote:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant "'is likely to succeed on the merits.'" Nken v. Holder, 556 U. S. 418, 434 (2009). I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case. See, e.g., Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); cf. Supreme Court Rule10. Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.

This brief passage makes five primary arguments.

First, Justice Barrett only considers one of the four Nken factors: likelihood of success on the merits. She does not address, at all, "whether the applicant will be irreparably injured absent a stay" or whether "issuance of the stay will substantially injure the" government's interest. Justice Gorsuch's dissent directly addresses these other factors. Irreparable harm was easy to satisfy, Gorsuch found, because the workers faced imminent termination. And Maine "failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does." Indeed, the Becket brief explained that "Forty-seven other states either do not have vaccine mandates on private healthcare facilities, allow testing as an alternative, or allow for religious exemptions." Why is Maine an "outlier"? Justice Gorsuch concluded, "This case presents an important constitutional question, a serious error, and an irreparable injury." He was right.

Second, Justice Barrett adds a new gloss to the first Nken factor. The Court should not simply "assess[] . . . the underlying merits." Even if a Justice thinks the applicants are likely to succeed on the merits, there is yet another threshold inquiry: "a discretionary judgment about whether the Court should grant review in the case." Here, Justice Barrett cites two authorities. Hollingsworth v. Perry (2010), which granted a stay of the broadcast of the Prop 8 trial; and Supreme Court Rule 10, which governs the standard for certiorari. In short, a Justice should only grant emergency relief in a case that is cert-worthy.

Third, Barrett explains why she added this gloss to the first Nken factor: "Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take." In other words, the Court would grant emergency relief in a case that would not otherwise meet the criteria for certiorari. And the applicants should not get a free preview of how the Justices would rule in an un-cert-worthy case.

Fourth, Barrett offers another reason to avoid granting emergency relief in an un-cert-worthy case, "applicants could use the emergency docket to force the Court to give a merits preview . . . on a short fuse without benefit of full briefing and oral argument. This statement is an obvious nod to the incessant criticism of the perfidious shadow docket. I truly fear that this criticism has permeated the Supreme Court, and at least two Justice are trying to address it.

Fifth, Barrett explains that relief is not warranted here. The "discretionary consideration" to deny certiorari "counsels against a grant of extraordinary relief in this case." She adds that this case "is the first to address the questions presented." Stated differently, there has not been sufficient "percolation," or a circuit split on this issue.

Justice Barrett made up this new rule out of whole cloth.  Hollingsworth does not provide any support for Barrett's new rule. In Hollingsworth, the Court granted a stay to block the District Court from broadcasting the Prop 8 trial.

Here is the relevant analysis from page 190:

To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (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; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent. Lucas v. Townsend, 486 U.S. 1301, 1304, 108 S.Ct. 1763, 100 L.Ed.2d 589 (1988) (KENNEDY, J., in chambers); Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 65 L.Ed.2d 1098 (1980) (Brennan, J., in chambers). To obtain a stay pending the filing and disposition of a petition for a writ of mandamus, an applicant must show a fair prospect that a majority of the Court will vote to grant mandamus and a likelihood that irreparable harm will result from the denial of a stay. Before a writ of mandamus may issue, a party must establish that (1) "no other adequate means [exist] to attain the relief he desires," (2) the party's "right to issuance of the writ is 'clear and indisputable,' " and (3) "the writ is appropriate under the circumstances." Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380–381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (some internal quotation marks omitted). This Court will issue the writ of mandamus directly to a federal district court "only where a question of public importance is involved, or where the question is of such a nature that it is peculiarly appropriate that such action by this court should be taken." Ex parte United States, 287 U.S. 241, 248–249, 53 S.Ct. 129, 77 L.Ed. 283 (1932). These familiar standards are followed here, where applicants claim that the District Court's order was based on a local Rule adopted in violation of federal law.

The bulk of this passage, as well as the Court's per curiam opinion, focused on irreparable harm--the very factor Justice Barrett does not even mention. Indeed, the very precedent Barrett cites approved of emergency relief. And I do not see anything on page 190 of the opinion that factors in the discretionary cert judgment to decide whether emergency relief is warranted. The Court never granted cert on the broadcast issue precisely because its shadow docket ruling obviated the issue. As time would tell, the Court ultimately held this case was not justiciable.

[Update: The first Hollingsworth factor states, "a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari." I think this standard is distinct from what Justice Barrett wrote above. Specifically, Hollingsworth focused on whether a case is "sufficiently meritorious to grant certiorari." Emphasis on "meritorious." But there are many, many discretionary factors to decide whether certiorari is appropriate, beyond the merits. Here, Justice Barrett cited Rule 10, which explains that "certiorari will be granted only for compelling reasons." And Rule 10 references several of those factors, including circuit splits. Also, Justice Barrett referenced the lack of percolation, as this is the first case to arrive at the Court. As we all know, too well, a case that is "sufficiently meritorious" may not warrant cert. The move from Hollingsworth ("sufficiently meritorious") to Rule 10 (many factors) is the gloss I referred to above. It is novel. I wrote a follow-up post here.]

In a few sentences, Justices Barrett and Kavanaugh have cut the fuse on the shadow docket. They have created a blueprint to deny emergency relief in any case that would likely not yield a cert grant. And we all know that the certiorari process is completely arbitrary. There is no rhyme or reason. The Justices routinely sit on petitions indefinitely as questions presented are haggled over. Generally, most cases are not particularly urgent so that lallygagging is tolerated. But on the shadow docket, the ebb and flow of the cert pool has no place. These sorts of emergency cases do not arise in the usual process. Here the workers face immediate termination. If and when this case arises on certiorari, the Court will likely find the controversy no longer needs to be resolved. And I am not certain that Justice Barrett is even right that this case "is the first to address the questions presented." There have been countless other emergency applications concerning vaccine mandates. Granted, Maine's law was unique in that it did not have express religious exemptions. But the issue of whether employers could require the vaccine has been percolating for months.

Moreover, Justice Barrett's position here becomes harder to defend in light of the premature circulation in the S.B. 8 litigation. If the Justices are willing to put abortion on the rocket docket (a term that is catching on), why not other issues? Once the Justices show they are able to resolve issues of national importance in an expeditious fashion--even in the absence of "percolation"--the natural implication is that other cases can also be resolved in an expeditious fashion.

If Barrett's new standard was correct, then the Court should have stayed out of Roman Catholic Diocese. At that point, then-Governor Cuomo had rescinded the relevant regulations. I doubt the Court would be willing to grant cert in that posture. The Court took the case to settle a nationwide dispute about the relevant standard for COVID-19 cases. That purpose is a valid usage of the emergency docket. But it isn't clear Barrett and Kavanaugh still stand by the decision to grant relief Roman Catholic Diocese. They may regret it. And in Tandon, Justice Barrett used her very first separate writing to push back against Gorsuch, Thomas, and Alito on the right to sing in church. Remember that Fulton made no mention of Roman Catholic Diocese or Tandon.

I sincerely worry that the rampant criticism of the shadow docket is working. Justice Barrett is signaling that she is not a "partisan hack," and developed a new standard to curtail the use of emergency relief. This concurrence will be cited, ad nauseum, in every single opposition to a stay application. It will become the new South Bay concurrence. Emily Bazelon's article from Friday morning, titled "It's Amy Coney Barrett's Supreme Court Now," was prescient.