The Volokh Conspiracy

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Justice Gorsuch's Concurrence in Labrador v. Poe

The walls are closing on universal, non-party injunctions against state laws.


Labrador v. Poe is perhaps the most significant shadow docket decision since the shadow docket became a thing. After endless and breathless criticism from the professoriate, the Justices are finally developing a framework for this new phenomenon, and seem to be coalescing around answers to two pressing questions. First, when should lower courts issue universal, non-party injunctions? Justice Gorsuch's concurrence, which was joined by Justice Thomas and Justice Alito speaks clearly to this issue. And second, how should the Supreme Court review universal, non-party injunctions on the emergency docket? Justice Kavanaugh's concurrence, which was joined by Justice Barrett, speaks clearly to this second issue. Both of these important writings reflect a lot of careful thought and attention on a matter of public concern. I will address the Gorsuch concurrence in this post, and the Kavanaugh concurrence in a later post.

The Facts and Posture of Poe

In December 2023, Judge Winmill of the District Court for the District of Idaho entered a preliminary injunction barring enforcement of Idaho's Vulnerable Child Protection Act. For those who care about forum shopping, in the entire state of Idaho, there are three federal judges: a Biden appointee, a 65-year old Trump appointee, and Winmill, a Clinton appointee. Winmill was also the judge who presided over the Edmo case, which involved a prisoner who asserted an Eighth Amendment interest in gender surgeries. (I wrote about that case here). How this left-leaning bench happens in a deep-red state confounds me.

The Ninth Circuit panel (Wardlaw, Paez, Nguyen) denied a stay on January 30, 2024 with a three-sentence order. (You see, lower courts have shadow dockets as well.) On February 16, 2024, the Idaho Solicitor General submitted an application for a stay to Circuit Justice Kagan. The briefing was completed on March 1, 2024.

The Supreme Court's Order

Forty five days later, on April 15, 2024, the Supreme Court issued a one-paragraph order in Labrador v. Poe. The Court stayed the District Court's preliminary injunction, "except as to the provision to the plaintiffs of the treatments they sought below." In other words, the Court limited the injunction to the two minor Plaintiffs: Pam Poe and Jane Doe. The vote here was either 6-3 or 5-4–it is not entirely clear where Chief Justice Roberts landed. Whatever happened here took some time–more than 6 weeks. Ultimately some compromise was crafted.

Justice Kagan would have denied the application for a stay. She did not provide any reasoning. It is curious practice to list denials of the application for a stay before concurrences in the grant of the stay. But that is the Court's practice.

There were three separate writings: 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 Gorsuch's concurrence

Justice Gorsuch observed that the district court's "universal" injunction applied to procedures that none of the plaintiffs even requested:

But instead of enjoining state officials from enforcing the law with respect to the plaintiffs and the drug treatments they sought, the district court entered a universal injunction. App. A to Application for Stay 52–54. That is, the court prohibited the defendants from enforcing "any provision" of the law under any circumstances during the life of the parties' litigation. Id., at 54. Among other things, this meant Idaho could not enforce its prohibition against surgeries to remove or alter children's genitals, even though no party before the court had sought access to those surgeries or demonstrated that Idaho's prohibition of them offended federal law.

Gorsuch explained that limiting relief to parties, and the relief they actually sought, is a "welcome development."

Early in the litigation below, the district court issued a preliminary injunction. Ordinarily, injunctions like these may go no further than necessary to provide interim relief to the parties. In this case, however, the district court went much further, prohibiting a State from enforcing any aspect of its duly enacted law against anyone. Today, the Court stays the district court's injunction to the extent it applies to nonparties, which is to say to the extent it provides "universal" relief. That is a welcome development.

It has become common enough to rail against universal, non-party injunctions against federal laws. But there is far less criticism of universal, non-party injunctions against state laws. This problem is especially pronounced for red states within blue circuits. Conservative legislation in Idaho or Montana stands no chance in the Ninth Circuit.

One of the few bright spots of the Judicial Conference's ill-fated policies was that it would reassign suits seeking universal, non-party injunctions against state laws. As we all know, a federal judge from Hawaii who can pick and choose his cases in Austin serves as the council of revision for the Texas legislature. And these rulings apply well beyond the named parties. But this should not be so. An injunction against federal officials, as well as state officials, should be limited to the named parties, absent some sort of class certification. Lest we forget that federal courts lack a writ of erasure. As Jonathan Mitchell explains, and Whole Woman's Health v. Jackson confirms, courts cannot enjoin a statute; they can only enjoin particular individuals from enforcing specific provisions against named parties.

Justice Alito's Join

How do you explain Justice Alito going along with the Gorsuch concurrence? On the one hand, he likely would have stayed the injunction in all regards, and thinks that the Plaintiffs' case is unlikely to succeed on the merits. But the Idaho Attorney General consented to the more narrow relief:

Before us, the State does not challenge the preliminary injunction to the extent it ensures the two minor plaintiffs in this case continued access to their drug treatments. That aspect of the district court's order will remain in place pending appeal. The State asks us to stay the preliminary injunction only to the extent it bars Idaho from enforcing any aspect of its law against any person anywhere in the State.

In any event, there were already five votes available to grant a partial stay, so perhaps Justice Alito saw some value in lining up against universal injunctions of state laws. This is a recurring issue, especially in Texas, that could gain some salience.

District Court Judges, Take Note

I hope that the federal judges in Austin, and panels of the Fifth Circuit, take note whenever the next universal injunction is issued against Texas. Quote this sentence at length:

In recent years, certain district courts across the country have not contented themselves with issuing equitable orders that redress the injuries of the plaintiffs before them, but have sought instead to govern an entire State or even the whole Nation from their courtrooms. . . . Just do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of aduly enacted law against anyone. Once that happens, the affected government (state or federal) will often understandably feel bound to seek immediate relief from one court and then the next, with the finish line in this Court. . . . Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote morecarefully reasoned judicial decisions attuned to the facts,parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in thisCourt.

I hope this concurrence has an impact on litigation in the Fifth Circuit, and elsewhere. Indeed, the Texas Solicitor General cited Justice Gorsuch's concurrence in a 28(j) letter for the S.B. 4 case:

In Labrador, the Court stayed a pre-enforcement, facial injunction of an Idaho law, with a majority questioning the propriety of non-party, statewide injunctions. Three Justices found the State likely to succeed based on "the traditional equitable rule" that cabins injunctive relief to the actually injured party, Slip.Op.4-6, 8 n.2 (Gorsuch, J., concurring), noting any other view would allow federal judges to "govern an entire State … from their courtrooms," id. at 10. Two more Justices agreed the State was likely to succeed in challenging "the scope of the injunction." Id. at 10 n.4 (Kavanaugh, J., concurring); see also id. at 7, 10. Here, the district court facially enjoined every application of S.B.4—even though it can never be enforced against Plaintiffs and without meaningful severability analysis. Labrador confirms such an extraordinary order raises serious federalism and separation-of-powers concerns and has no rooting in traditional equity practice.

The withering shadow docket

Footnote 4 of Justice Gorsuch's concurrence makes plain why the criticism of the shadow docket was always so overwrought:

Many of this Court's recent orders granting interim relief were the product of a different and unrelated problem: the profound "intrusionson civil liberties" governments attempted in response to COVID–19. Arizona v. Mayorkas, 598 U. S. ___, ___ (2023) (statement of GORSUCH, J.) (slip op., at 4). And, "[n]ot surprisingly," the number of requests for interim relief in this Court "has shrunk in the years since COVID–19." Post, at 11, n. 5 (KAVANAUGH, J., concurring in the grant of stay).

The Court was confronted with an unprecedented set of circumstances, and it dealt with emergency cases as best as it could. Now, with the benefit of hindsight, and without the benefit of the loudest critics, the Court is figuring out how to deal with the emergency docket.


I will address the Kavanaugh concurrence in a later post.