The Volokh Conspiracy

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Justice Kavanaugh's Arrested Development

U.S. v. Texas, Linda v. Richard, and Brett v. Amy.


Last week, Justice Kavanaugh wrote four opinions of exceedingly short length. Arizona v. Navajo Nations was thirteen pages, Pugin v. Garland was ten pages,  Coinbase, Inc. v. Bielski was ten pages, and United States v. Texas was fourteen pages. I am generally a fan of short opinions. Brevity is the soul of wit, after all. But Justice Kavanaugh's opinions are not short and witty. Rather, he consistently presents a very narrow conception of the facts, and then quietly modifies precedent to fit those sterilized facts. I've already written about Kavanaugh's anemic opinion in Navajo Nations. I don't have time to write about Pugin and Coinbase, but you should skim the dissents, which I found more persuasive than I expected. (Just CTRL-F the word "majority"). Here, I will discuss Justice Kavanaugh's majority opinion in United States v. Texas–in particular, what he included and what he excluded.

The majority opinion turns almost entirely on Linda R.S. v. Richard D. (1973). The facts of that case are unusual. At the time, Texas law apparently obligated prosecutors to bring charges against married fathers who did not pay child support. But the law did not require prosecutors to bring charges against unmarried fathers who failed to pay child support. The mother of an illegitimate child filed a suit that would have compelled prosecutors to charge these deadbeat dads. You'll be forgiven if you missed Linda R.S. The Solicitor General's brief devoted about two paragraphs to the case, and Texas's brief devoted about two sentences to the Marshall decision. But that decision included a very useful sentence: "A citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." And, as Justice Kavanaugh sees it, that is exactly the relief Texas sought: "The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests." Therefore, the Court held, the plaintiffs do not assert a judicially cognizable injury-in-fact.

Justice Barrett's concurrence demonstrates that Justice Kavanaugh misread Linda R.S. That case concerned what Lujan described as the redressability prong. The Court indeed found that the plaintiff had suffered an injury, but concluded that the Court could not issue a remedy that would redress the injury. Specifically, ordering the prosecutor to bring charges against the deadbeat dad would not necessarily compel him to pay child support. (Indeed, an incarcerated father seems less likely to pay child support.) The relationship between injury and redressability often blurs together–the ability for the court to order some remedy that redresses an injury often turns on what the asserted injury is. But it is possible to have an injury, even if the court cannot issue an order that would redress that injury. I noted earlier that Justices Gorsuch, Thomas, and Barrett concluded that a statute prohibited the issuance of an injunction in this case–thus the states suffered an injury that the courts could not redress.

In her Texas concurrence, Justice Barrett wrote:

We agreed [in Linda R.S.] that the plaintiff "suffered an injury stemming from the failure of her child's father to contribute support payments." But if the plaintiff "were granted the requested relief, it would result only in the jailing of the child's father." Needless to say, the prospect that prosecution would lead to child-support payments could, "at best, be termed only speculative." For this reason, we held that the plaintiff lacked standing. Only then, after resolving the standing question on redressability grounds, did we add that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." In short, we denied standing in Linda R. S. because it was speculative that the plaintiff's requested relief would redress her asserted injury, not because she failed to allege one.

There are further problems with Justice Kavanaugh's reliance on Linda. R.S. Does Linda R.S. even apply to the immigration context? Justice Kavanaugh cites one case in a string cite, which the Solicitor General also cited:

cf. Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 897 (1984) (citing Linda R. S. principle in immigration context and stating that the petitioners there had "no judicially cognizable interest in procuring enforcement of the immigration laws" by the Executive Branch).

Justice Alito's dissent explains why Sure-Tan burns:

The Court notes in a quick parenthetical that the "Linda R. S. principle" was once "cit[ed] . . . in [the] immigration context" in Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 897 (1984), ante, at 5. But Sure-Tan's single "[c]f." cite to Linda R. S. provides the Court no help. 467 U. S., at 897. Sure-Tan only rejected (quite reasonably) any standalone "cognizable interest in procuring enforcement of the immigration laws" by a party who lacked any "personal interest." Ibid. (emphasis added). And it did so, not as part of a standing analysis, but as part of its explanation for rejecting two employers' attempt to assert that seeking to have employees deported as retaliation for union activity was "an aspect of their First Amendment right 'to petition the Government for a redress of grievances.'"

That's some thin gruel to extend Linda R.S. to the immigration context. There is another reason to question the relevance of  Linda R.S. Immigration enforcement is a civil, rather than a criminal matter. (United States v. Hansen addressed this distinction.) The word "arrest" is not wrong in this context. Indeed, Section 1226(a) provides that "On a warrant issued by the Attorney General, an alien may be arrested." But Texas's suit concerned Section 1226(c), which references detention: "The Attorney General shall take into custody . . . ." There is a difference between the prosecutorial discretion of a criminal district attorney, and prosecutorial discretion for federal immigration enforcement. Congress has imposed fairly stringent standards for the latter–even if it has failed to provide sufficient funding to enforce the laws. The majority sought to avoid infringing on Article II, but in the process, disregarded how the executive abused Article I. I think the analogy between criminal prosecutions and immigration detainers does not hold. This precedent fails on so many levels.

What about the sentence from Linda R.S. that Justice Kavanaugh quoted over and over again? Barrett described it as a "bonus discussion–that is, dicta.

I see little reason to seize on the case's bonus discussion of whether "a private citizen" has a"judicially cognizable interest in the prosecution or non-prosecution of another" to establish a broad rule of Article III standing.

Let's assume that Linda R.S. applies to an immigration case. Is that precedent even analogous to the relief Texas sought? Remember, that Texas case concerned a request to criminally prosecute deadbeat dads. For starters, Justice Kavanaugh was incorrect in stating, over and over again, that "The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests." Justice Barrett explains why:

Second, even granting the broad principle the Court takes from Linda R. S., I doubt that it applies with full force in this case. Unlike the plaintiff in Linda R. S., the States do not seek the prosecution of any particular individual—or even any particular class of individuals. See ASARCO Inc. v. Kadish(1989) ("[F]ederal standing 'often turns on the nature and source of the claim asserted'"). In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens. See Brief for Respondents 15; Tr. of Oral Arg. 124–125. They acknowledge that 8 U. S. C. §1226(c)(1)'s detention obligation "only applies until" the Government makes "a decision whether or not to prosecute." Tr. of Oral Arg. 100. And they readily concede that if the Government decides not to prosecute, any detention obligation imposed by §1226(c)(1) "immediately ends."

Linda R.S. provides no basis for the majority opinion. Yet, Justice Kavanaugh's breezy 14-pager relies almost exclusively on this precedent. Did Justice Kavanaugh have a response to Justice Barrett? No. As he is wont to do, Justice Kavanaugh simply ignored the former procedure professor who runs circles around him. Indeed, the other Justices are starting to call Kavanaugh out for playing fast-and-loose with facts and law. Justice Alito wrote that Justice Kavanaugh "omits much that is necessary to understand the significance of its decision." And Justice Gorsuch asked if Justice Kavanaugh "ignored" Texas's arguments concerning the Take Care Clause. These ultra-short opinions aren't fooling anyone.

Even worse, Justice Kavanaugh quietly modified Linda to establish a new rule. It's not enough to assert an injury in fact, as that term is understood by Lujan. Rather, under the Kavanaugh test, there must be some sort of "tradition" of courts recognizing that type of injury. In other words, for an injury to be "judicially cognizable," the asserted injury must "'traditionally [be] thought to be capable of resolution through the judicial process'—in other words, that the asserted injury is traditionally redressable in federal court." To be clear, Justice Kavanaugh mentions redressability, but the focus is on whether the injury is "judicially cognizable." (The loose language here will no doubt create confusion.)

Under this standard, the Court should now apply some sort of "history and tradition" test when assessing whether the plaintiff has asserted an injury in fact. And really, as Justice Alito notes, "no history is discussed apart from those cases," so the test is just tradition. It's like Bruen for standing! And Texas flunks this test: "The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions." This framework is not clearly stated in past precedent. As Justice Barrett demonstrates, Linda R.S. accepted that the plaintiff had an injury. Rather, the Court adds a new gloss on the Lujan framework. Ultimately, the Court quietly misread a five-decade-old precedent to develop a new restriction on Article III standing–a restriction gerrymandered to the facts of this case. The lower courts will have a blast with this decision!

After five years on the Court, Justice Kavanaugh continues to confound me. I know he is more capable than the work-product he produces. Just this past week, he wrote four super-short opinions, which cut corners on law and fact, and failed to respond to pointed concurrences/dissents. Justice Kavanaugh was a well-regarded circuit justice for more than a decade. He routinely prepared intricate and careful decisions about the most arcane topics. But on the Supreme Court, his breezy approach to judging leaves so much to be desired. What happened? To use a theme from the case, his development was arrested. I'm about to write a sentence I never thought I would write: Justice Jackson's opinions this term have displayed more analytical rigor than Justice Kavanaugh's. Seriously, read her dissent in Coinbase v. Bielski,  and tell me you were not persuaded–at least Justice Thomas was. At this point, Justice Kavanaugh is probably done with majority opinions for this term, so at most we'll get a few frustrating concurring opinions. I hope next term brings an improvement.