Justices Kavanaugh And Barrett's Shadow Docket Concurrence In The Hamburger Mary's Case

The good, the bad, and the ugly.

Florida enacted a law that prohibits restaurants and bars from showing "adult live performances" to children. A restaurant in Orlando named Hamburger Mary's challenged the law on First Amendment grounds. The District Court agreed, and enjoined the state from enforcing the law against Hamburger Mary's, and any other entity. In other words, the court granted relief to non-parties. This was a universal injunction. (See Howard Wasserman's post from July.) The Eleventh Circuit denied a stay pending appeal. Florida sought partial relief from the Supreme Court. Specifically, the state asked the Supreme Court to limit the relief to Hamburger Mary's.

The Supreme Court denied Florida's application. Justices Thomas, Alito, and Gorsuch would have granted the application, though they did not provide any reasoning. Justice Kavanaugh wrote a three-page concurrence, which Justice Barrett joined, with the exception of a footnote–more on that footnote later.

There is some good, some bad, and some ugly.

At the outset, I will provide some praise of the concurrence. (I always try to give credit where it's due). Justice Kavanaugh acknowledges that in the abstract, Florida's request has merit:

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. [FN1]

Justice Kavanaugh is exactly right here. Lost in the debates about nationwide injunctions and "set aside" under the APA is the more fundamental question teed up by Jonathan Mitchell's canonical article: what aspect of the judicial power allows judges to grant relief to non-parties? And don't say equity. This is an issue on which most judges would rather not address. The Florida district did not certify a class of all similarly-situated businesses. Rather, it purported to grant relief to non-parties based on the overbreadth doctrine. (The overbreadth doctrine is already on a death watch.) Jonathan Mitchell has proven that courts cannot "strike" down statutes, as if they had a writ of erasure. Whole Woman's Health v. Jackson is proof of the genius's work. So what gives courts the power to grant relief to non-parties? Justice Kavanaugh and Barrett tell us the answer is open. And this issue could warrant review in the future. Amen! This issue is far more important than arcane debates about nationwide injunctions against the federal government.

Next, we get to Footnote 1, which Justice Barrett did not join. It is long, so I'll break it up into three sections.

First, Justice Kavanaugh takes a side in the longstanding debate over APA Section 706 and "set aside." Specifically, he concurs with Mila Sohoni, and in the process, disagrees with Sam Bray. Justice Barrett, a former colleague of Bray, disagrees with Kavanaugh on this point.

¹ Importantly, that issue is distinct from the issue of a court's setting aside a federal agency's rule under the Administrative Procedure Act. The APA expressly authorizes a court to "hold unlawful and set aside agency action" that violates the Act. 5 U. S. C. §706(2); see M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1173 (2020)("The term 'set aside' means invalidation—and an invalid rule may not be applied to anyone" (footnote omitted)).

Second, Justice Kavanaugh, an alum of the D.C. Circuit which sets aside ten rules before brunch, maintains that the APA does give courts something like a writ of erasure:

As a leading article explained: "Judicial review of agency action presents a different situation because the Administrative Procedure Act instructs a reviewing court to 'hold unlawful and set aside' agency rules and orders that it deems unlawful or unconstitutional." J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1012 (2018). Therefore, "[u]nlike judicial review of statutes, in which courts enter judgments and decrees only against litigants, the APA . . . go[es] further by empowering the judiciary to act directly against the challenged agency action. This statutory power to 'set aside' agency action is more than a mere non-enforcement remedy. . . . In these situations, the courts do hold the power to 'strike down' an agency's work, and the disapproved agency action is treated as though it had never happened." Id., at 1012–1013 (footnote omitted).

If Sam Bray is right, and the APA merely granted courts the sort of power they already had at common law, then the APA does not give courts the writ of erasure for agency actions. I don't know that Mitchell has addressed Bray's scholarship. Kavanaugh and Barrett are now clearly on both sides of this debate.

Third, Kavanaugh concludes the footnote with this sentence:

Of course, if a lower court sets aside an agency rule under the APA, the Federal Government may promptly seek a stay in the relevant court of appeals or in this Court if the Government wants the rule to remain in effect while the appellate litigation over the rule's legality is ongoing.

I'm not entirely sure what is going on here. Is it the point that the power to "set aside" a rule is still subject to equitable principles like a stay? I'm sure federal agency lawyers will cite this sentence for years to come, whatever it means.

Okay, enough with the good. Onto the bad. Justice Kavanaugh states the standard for granting relief:

For this Court to grant a stay pending appeal, a stay applicant must show, among other things, "a reasonable probability" that this Court would eventually grant certiorari on the question presented in the stay application if the district court's judgment were affirmed on appeal. Merrill v. Milligan, 595 U. S. ___, ___ (2022) (KAVANAUGH, J., concurring) (slip op., at 3); see Hollingsworth v. Perry, 558 U. S. 183, 190 (2010). The State has not made that showing here.

We know in this case that three members of the Court would grant a stay. Presumably, the troika would grant certiorari as well. Therefore, only one more vote would be needed to grant certiorari. Justice Kavanaugh could be that fourth vote. Ditto for Justice Barrett. When Justices Kavanaugh and Barrett write that there is not a "reasonable probability" that certiorari would be granted, what they are really saying is that Justices Kavanaugh and/or Barrett do not think certiorari will be granted. The concurrence hides behind the royal we–the Court will not grant cert. But in reality, cert can be granted by either member of the concurrence. And a stay could be granted by both of them. Justice Barrett used a similar locution in Doe v. Mills (here and here). When there are three noted dissents, this "reasonable probability" standard hides the ball.

Justices Kavanaugh and Barrett explain why they (that is, the Court) would not grant relief:

But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief. This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation. For that reason, the Court is not likely to grant certiorari on that issue in this particular case.

Again, these are reasons why the two members of the Court would not grant certiorari, though couched with the royal Court.

Finally, we get to the ugly.

In the span of two sentences, Justices Kavanaugh and Barrett succumbed to the temptation of judicial supremacy. They really can't resist.

To be clear, if this Court, for example, were ultimately to affirm the District Court's First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect.

Stare decisis is a doctrine that courts follow. The state of Florida, and all executive branch officials, are not bound by stare decisis. Government officials would be prudent to follow Supreme Court decisions, because failing to do so could trigger more litigation, and damages, but that prudence is not due to stare decisis. Rather, Florida is bound by judgments. If a federal district court issued an injunction barring the state government from enforcing the law against only Hamburger Mary's, and the Supreme Court affirms that judgment, the judgment still only extends to Hamburger Mary's. The Supreme Court's affirmance does not magically extend the scope of the judgment; the affirmance triggers a multi-step process.

The concurrence collapses at least five steps under the umbrella of stare decisis. First, the state would have to enforce the statute against some other party. Second, that other party would sue some state official. Third, a district court, following vertical stare decisis, would rule that Florida is violating the First Amendment. Fourth, a district court could issue a permanent injunction barring state officials from enforcing the statute against that other party. Fifth, Florida would likely have to pay damages and attorney's fees.

Let me rewrite the above sentence to avoid the temptation of judicial supremacy:

To be clear, if this Court, for example, were ultimately to affirm the District Court's First Amendment judgment on the merits, state enforcement of the statute against anyone, party or not, may not ultimately be successful, as the state could face litigation, and federal district courts, subject to vertical stare decisis, would be compelled to rule against Florida in any potential litigation based on the enjoined statute.

Stare decisis does not have some sort of gravitational force that stops an official from acting. What stops an official from acting is comity, litigation, or the threat of litigation. But the problem with this sentence goes even deeper.

The Supreme Court does not have the power to bind non-parties to a judgment. The Supremacy Clause and Marbury v. Madison have nothing on point. And don't get me started on Cooper v. Aaron. The Supreme Court cannot erase a statute. Justice Kavanaugh favorably cited Jonathan Mitchell with regard to the APA, but ignored Mitchell on the most pivotal question: Nothing about the Supreme Court's affirmance in this case would affect how Florida can enforce the statute against non-parties. Nothing. (Justice Barrett's decision to not join Footnote 1 avoids this tension.)

Let's go back to the sentence I praised above. Notice how it focuses on "district courts."

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future.

Let's try that same passage, but substitute "Supreme Court" for "district court"

No federal statute expressly grants the Supreme Court the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether the Supreme Court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future.

No federal statute gives such a power to the Supreme Court either. I think the Supreme Court should revisit its own power to enjoin non-parties, in the appropriate case.