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.

Comments

[not guilty]

It would be helpful here to link to the District Court opinion. href=”https://storage.courtlistener.com/recap/gov.uscourts.flmd.414413/gov.uscourts.flmd.414413.29.0.pdfhttps://storage.courtlistener.com/recap/gov.uscourts.flmd.414413/gov.uscourts.flmd.414413.29.0.pdf” rel=”nofollow ugc”>https://storage.courtlistener.com/recap/gov.uscourts.flmd.414413/gov.uscourts.flmd.414413.29.0.pdfhttps://storage.courtlistener.com/recap/gov.uscourts.flmd.414413/gov.uscourts.flmd.414413.29.0.pdf

[SimonP]

Not surprising to see Josh come down on the side of, "people subject to laws that have been declared unconstitutional - including by the Supreme Court - should remain at constant risk of enforcement unless and until they seek and obtain judicial relief via a lawsuit."

Josh, this is a good example of where your lack of theory and primary interest in provocative flame-baiting gets you into trouble. Here, you are arguing that there is nothing inherent in the judicial power that permits courts - including the Supreme Court itself - to "strike down" statutes. On this view, the judicial power extends only to ordering relief (or not) with respect to the parties directly before it. Thus, with respect to non-parties, the true effect of a Court order "striking down" a statute is just to signal, to those non-parties, how a subsequent challenge to the statute is likely to go. Parties not subject to a Court order remain theoretically "free" to enforce statutes that have been declared "unconstitutional"; they have only pragmatic reasons not to do so.

But it would be plainly untenable, for a constitutional republic, if legal officials truly regarded themselves as "free" to enforce unconstitutional laws unless and until they are enjoined by a court from doing so. Whatever the "true" effect of a court order declaring a statute to be "unconstitutional," our system relies on other legal officials - including judges, governors, and law enforcement officials - to regard those orders as effectively "binding" on their actions.

In our system, our courts must rely on the broad agreement, by other legal officials, that their orders are "binding" even when applied to new facts and non-parties. Otherwise, the system falls apart. But you have elsewhere argued, Josh, that the courts should dismiss "popular opinion" when they are reaching their decisions. It is important, you have argued, for the courts - and especially the Supreme Court - to reach whatever conclusions they ought to reach based on core jurisprudential principles, and not worry too much about whether their conclusions and holdings would be "accepted" by other members of the public.

These two positions are in tension, if not outright conflict. On the one hand, you argue that the Court need not worry if its decisions are likely to persuade or appeal to a broad mass of the public. On the other, you argue that the judicial power is not self-executing, and indeed applies only to direct parties and relief ordered relating to them, so that the broader coherence of a constitutional regime relies on other legal officials finding Court holdings to be sufficiently persuasive and binding as worth following absent direct orders to do so.

You take the two positions at different times, to serve different polemics. Sometimes, you want to chortle over ripping out constitutional protections for important freedoms and rights and argue for broad judicial power. Other times, you want to chastise members of the Court for their expansive views of their own power. The two positions cannot be easily reconciled by a single theory of what the judicial power is, or how it works.

[ah....Clem]

" The two positions cannot be easily reconciled by a single theory of what the judicial power is, or how it works."

The "theory" is actually quite simple. Josh is in favor of the judiciary having the power to widely enforce decisions he agrees with and vehemently opposed to them having any power to enforce those he disagrees with.

It is entirely consistent and absolutely predictive of how he will "interpret" the law. All that fancy leagalese is just a cover to obscure the cheerleader outfit he's wearing.

[LawTalkingGuy]

Last month he was all mad because a town repealed its buffer zone law after lobbying from Planned Parenthood even though a cert petition was pending. He argued that the Court should continue to exercise jurisdiction anyway to overturn its precedent on buffer zones!

https://reason.com/volokh/2023/10/26/westchester-county-and-planned-parenthod-attempt-to-manipulate-scotus-jurisdiction-to-save-hill-v-colorado/?comments=true#comments

[Rev. Arthur L. Kirkland]

It's hard out there for a pimp.

[John F. Carr]

Given that the Supreme Court can not right all wrongs, this case doesn't seem that important. Same if the injunction were denied or limited to the plaintiff. If I were on a panel of the 11th Circuit with an obligation to make a decision, I would narrow the preliminary injunction to protect only the plaintiff.

[not guilty]

I wonder what practical difference that would make. Suppose a District Court issued a preliminary injunction against enforcement of a statute, binding only the parties before the court. If state or local government officials proceeded to enforce the same statute against other parties, they would be at high risk of a hefty award of attorney fees under 42 U.S.C. § 1988 in a subsequent lawsuit and, if sued individually, an award of punitive damages. Smith v. Wade, 461 U.S. 30, 56 (1983) (a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others).

[rloquitur]

Interesting. A state can order kids to stay at home, wear masks and stay out of school, but it cannot keep kids out of drag shows? I have patronized a Hamburger Mary's--almost exclusively for take-out. Good food. Not crazy about the drag stuff, but I'd never think it's ok to bar kids from seeing a drag show that doesn't have nudity.

[Religion and Politics, my life]

You can always bring a case against any law just because of the specificity it allows you. But that means a positively stated law is always under attack. That is not right. Where is the societial interest, the non-specific, the case that has millions of people behind it but no recognizable lawyers and griping plaintiffs?

I totally support the ban.

[ah....Clem]

Correct me if I'm wrong here, but isn't it normally the case that once a law has been ruled unconstitutional the state is enjoined from enforcing that law? That is, they can't keep indicting people and then make the defendant hire counsel to explain that the law is unenforceable.

And if pre-trial the challenge to the constitutionality of a law is likely to prevail on the merits it seems absurd to only enjoin the enforcement against the plaintiff instead of the citizenship at large, making everybody affected lawyer up and file their own challenges.

[windycityattorney]

I was taught that a statute declared unconstitutional is void *ab initio*. I.e, its as if the statute was never enacted. I understand there can (and almost always are) appeals but in the case where an application for stay is denied...the district court's judgment in and of itself seems to put the State on notice not to attempt to enforce the statute in question unless and until the district court judgment is reversed by a higher court?

[Dilan Esper]

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.

This is just loopy. I am just a lawyer, not a law professor, but I can tell you that if I have a client and there's a controlling Supreme Court case rejecting the exact thing the client wants to do, I'm telling the client not to do it unless there's some reason to think SCOTUS is going to overturn its decision.

For Blackman to think that stare decisis has no effect on anyone other than courts is dumb as a box of rocks.

[ReaderY]

This doctrine was part of the South’s strategy to nullify Brown. Make ‘em sue separately over each and every segregation action.

Cooper v. Aaron said auch a deliberate strategy is unconstitutional and courts have equitable power to frustrate it.

Professor Blackman appears to be hoping the courts will either overrule Cooper v. Aaron, or just forget about it.

[David Nieporent]

He's been engaged in an explicit anti-Cooper v. Aaron campaign for a few years now here on the VC.

[Voize]

A state official loses qualified immunity against §1983 liability for enforcing a law whose unconstitutionality is clearly established. That seems to me a much more effective enforcement of stare decisis, and a more practical sense of what it means to be "bound", than a judge who just keeps getting reversed.

[ReaderY]

There is another issue here, territorial jurisdiction, separate from the issue of non-parties. District courts don’t have jurisdiction outside their district. A different district court in another case could decide the legal issue the opposite way. District courts issuing contradictory injunctions applicable outside their territorial jurisdiction make compliance impossible, tend to result in the public disregarding court orders, and tend to put the law and the judiciary into disrepute.

Separate from the issue of non-parties, district court injunctions should be limited to the territory of the judicial district.

The Supreme Court does not have this issue.

[MatthewSlyfield]

"Separate from the issue of non-parties, district court injunctions should be limited to the territory of the judicial district."

Actual parties to a case ought not be forced to re-litigate simply because they moved do a different district/circuit.

[ReaderY]

What happens if a district court in Florida enjoins the United States to do something, and a district court in Alaska enjoins the United States not to do it?

Same with a large corporation with multiple sites.

It’s not an absolute. Courts can consolidate and transfer litigation. But that requires a procedure where all parties are on notice. Federal courts should as a rule not put parties or the public in a position where different federal courts can require opposite conduct.

There’s a separate issue. Just as states represent a laboratory where different states try different things before a national consensus is reached, the judicial system lets different lower-level judges offer opinions on major issues as they perculate through the system that the Supreme Court can then consider in reaching a final decision. Sometimes the first opinion out the door is flawed and criticism of the initial decision results in new issues and arguments coming up that subsequent courts can consider.

[Lee Moore]

What happens if a district court in Florida enjoins the United States to do something, and a district court in Alaska enjoins the United States not to do it?

Why go to Alaska ? A different judge in the same Florida district might reach the opposite conclusion to his Florida colleague. Why should the first judge be able to enjoin the winning party in the second judge’s case ?

As others have said, it’s nothing to do with the geography, it’s to do with the parties.

It’s true that it would be very tiresome if the State of Florida, having lost to A, then had another go at B, and lost again, and then at C and so on. But after the first three or four, one would expect the courts to get the hang of :

(a) issuing summary decisions on very short notice (b) dusting off those old textbooks about costs and vexacious litigants and (c) dusting off their other textbooks on when qualified immunity, for those executing laws that keep falling on their faces in court, does not apply

[David Nieporent]

.

There is another issue here, territorial jurisdiction, separate from the issue of non-parties. District courts don’t have jurisdiction outside their district.

No, that's not how it works. I don't even know what your claim means. Courts have jurisdiction over parties before them. For example, a corporation sues an ex-employee for revealing its trade secrets to competitors. The court issues an injunction to forbid the ex-employee from doing so. Do you think this injunction only applies in a tiny geographic area, and that the ex-employee can drive 75 miles away and then continue revealing those trade secrets?

[ReaderY]

I’m limiting my statements on this to non-parties. However, I don’t think the US should be subjected to conflicting injunctions.

[David Nieporent]

What? Your statement was about geographic jurisdiction. Courts never have jurisdiction over non-parties.¹ The point here is that the state is a party, and the injunction is against the state.
​
​
¹Yes, I know that's a minor overstatement. They have jurisdiction over non-parties working in concert with parties. And of course have limited jurisdiction over witnesses and such.