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Justice Kavanaugh's Concurrence in Labrador v. Poe

Justice Kavanaugh laid out a unifying theory for the Shadow Docket.


Earlier, I noted that Labrador v. Poe was the Supreme Court's most significant shadow docket decision since the shadow docket became a thing. Justice Gorsuch's concurrence, which was joined by Justices Thomas and Alito, signals that the Court will now carefully scrutinize non-party, universal injunctions issued against state laws. Perhaps even more significant was Justice Kavanaugh's concurrence, which was joined by Justice Barrett. Justice Kavanaugh addresses a threshold question: what are the "best processes for analyzing likelihood of success on the merits in emergency cases"?

This may be the most important opinion that Justice Kavanaugh has written on the Supreme Court. Justice Kavanaugh is laying out a unifying theory for the Shadow Docket. Every page brought new insights that reflect thoughtful consideration of a very complex topic. As regular readers know, I am often an outspoken critics of Justice Kavanaugh's separate writings, but his Labradaor concurrence changed the way I think about the emergency docket. Coupled with his textualist concurrence in Rudisill from Tuesday, Kavanaugh may have had his most productive twenty-four hours on the high court.

I'll break down the concurrence into eleven principles.

Principle #1: The Emergency Docket is not discretionary

Much of the Supreme Court's docket is discretionary. The Justices can deny certiorari for the overwhelming majority of cases on the docket, without providing any explanation. The emergency docket, however, is mandatory. When an application is presented, the Court has to rule on it. Justice Kavanaugh explains:

When an emergency application comes to this Court, we must decide it—grant or deny. The Court has no authority to reject or turn away emergency filings without deciding them.

Principle #2: What is the interim status of the law while litigation proceeds?

When an application is granted or denied, the Supreme Court's urgent decision will likely remain in effect between "one to three years or even longer" while the lower court litigation continues. Only the Supreme Court will decide whether the "law is enforceable" during that period. Justice Kavanaugh offers several examples, including West Virginia v. EPA (2016). This shadow docket decision, dated February 9, 2016, put the Clean Power Plan on hold. Four days later, Justice Scalia–the fifth vote–died. Had the case been briefed a few days later, the Clean Power Plan would have gone into effect, and likely remained in effect. But, we all know that the plan would never go into effect.

Principle #3: There will almost always be irreparable harm on both sides

When a new law goes into effect, Justice Kavanaugh observes, "the harms and equities are very weighty on both sides." Plaintiffs will always be harmed by the enforcement of the new law.  Likewise, the government will always be harmed by its inability to enforce the law. Justice Gorsuch's concurrence pointed out:

Members of this Court have long held that, "'[a]nytime a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.'" Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). Likewise, this Court has held that "[t]here is always a public interest in prompt execution" of the law, absent a showing of its unconstitutionality. Nken, 556 U. S., at 436.

Given these dueling harms and balanced equities, the "irreparable harm" element will seldom be dispositive. (Whenever I read a motion for a preliminary injunction, I usually gloss over the "irreparable harm" section because it is so formulaic.) As a result, Justice Kavanaugh explained, the entire analysis will usually turn on the "likelihood of success." He wrote, "the best and fairest way to decide whether to temporarily enjoin a law pending the final decision is to evaluate which party is most likely to prevail in the end. [FN2]"

This sentence is followed by Footnote 2:

This Court has used different formulations of the factors for grantingemergency relief. All formulations basically encompass (1) likelihood of success on the merits (or a fair prospect of success); (2) certworthiness; (3) the harms to the parties; and (4) the equities and public interest. See, e.g., Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). For present purposes, I will treat likelihood of success as equivalent to a fair prospect of success. If there is any meaningful difference among the common formulations of the emergency-relief factors (which I tend to doubt), those distinctions can be explored if necessary in a future case.

Even though Kavanaugh cites the four factors from Hollingsworth, it is clear that most, if not all of the weight, turns on the first factor. The second factor, certworthiness, will be addressed below.

Principle #4: The lower courts do not receive deference on the emergency docket

In Labrador, the District Court issued a universal injunction and the Ninth Circuit declined to stay that ruling. In dissent, Justice Jackson would have given some deference to the prevailing party where both of the lower courts agreed. Justice Kavanaugh disagreed with any sort of deference. Moreover, the Supreme Court has a "responsibility to resolve major questions of national importance." Kavanaugh explained that "a default policy of off-loading to lower courts the final word on whether to green-light or block major new laws for the several years until a final ruling on the merits would amount to an abdication of this Court's proper role."

I agree entirely. Questions of law are always reviewed de novo. And the Supreme Court, of all courts, has the mandate to decide these issues of national importance. And to be clear, the constitutionality of a state statute is of national importance, as states nowadays tend to copy legislation. The law at issue in Idaho exists in many other states.

Principle #5: It is difficult to define what the status quo is

In, Las Americas Immigrant Advocacy Center v. McCraw, also known as United States v. Texas, Part ∞, Justice Barrett observed that the status quo is a "tricky metric, because there is no settled way of defining 'the status quo.'" In Poe, Justice Kavanaugh expanded on this issue.

There is no good blanket answer to the question of what the status quo is. Each conception of the status quo is defensible, but there is no sound or principled reason to pick one over another as a rule to apply in all cases involving new laws.

Worse still, maintaining the status quo could "lead to very troubling results." If the status quo is defined as the status before the law was enacted, "some plainly constitutional and democratically enacted laws would effectively be blocked for several years pending the final decision on the merits." If the status quo is defined as the status after the law was enacted, an unconstitutional law "would nonetheless remain in effect and be enforced against individuals and businesses for several years." This approach is "inequitable and scattershot."

Principle #6: Cert-Worthiness is of limited utility on the emergency docket

In Does 1-3 v. Mills (2021), Justice Barrett wrote a concurrence, joined by Justice Kavanaugh, that focused on cert-worthiness as important factor to determine whether relief should be granted on the emergency docket. 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.

At the time, I criticized this focus on cert worthiness as a factor. I did not think this flowed from Hollingsworth. Moreover, in Doe there were three votes to grant a stay, which means there were three votes for certiorari. The fact that there were not four votes reflected the fact that Justice Barrett and/or Justice Kavanaugh did not see fit to grant cert. Supreme Court Rule 10 should play no role in deciding whether to grant an emergency appeal.

Justice Kavanaugh repeated the cert-worthiness standard in his Hamburger Mary concurrence.

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.

Again, I noted that there were three votes for a stay, so we know the reason why there was not a fourth vote: Justices Kavanaugh and Barrett didn't think the issue was cert-worthy. I've long criticized cert-worthiness under Rule 10 as a factor for the stay application.

In Poe, Justice Gorsuch pointed out an important element of the cert-worthiness analysis. When a Justice is acting alone in chambers, he will have to predict whether the full Court is likely to grant review. But when the full Court is considering an emergency application, there is no need to predict. The Justices know who is for relief and who is against relief. The speculation serves no purpose, since the votes are already known:

Second, the dissent suggests that, before granting relief, we should ask whether a case is "certworthy." Post, at 4. But it isn't clear how that would help matters either. In the past, various individual Justices faced with requests for interlocutory relief in chambers, sometimes while the Court stood in recess, considered whether four Justices would likely agree to take up the dispute. That practice may be understandable. But when hearing many stay requests,this one included, we sit as a full Court. And here, a majority has decided that this case is worthy of the Court's attention.

It will be a rare shadow-docket case where certworthiness is something that has to be predicted.

In Poe, Justice Kavanaugh cites Justice Barrett's Mills concurrence:

Third, JUSTICE BARRETT has emphasized that the Courtcan and should take care to focus on certworthiness when considering emergency applications. Does 1–3 v. Mills, 595 U. S. ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief ). If the underlying merits issue would not warrant this Court's review when the case returned to the Court on the merits docket, then we should deny the application and leave the question of interim relief to the court of appeals. I fully agree with JUSTICE BARRETT's important insight.

But then Justice Kavanaugh immediately explains why certworthiness is of limited utility.

Of course, the certworthiness factor is, by definition, only a partial cure for the issue here: Although emphasizing that factor reduces the number of emergency applications involving new laws where we have to assess the merits, some of the most significant and difficult emergency applications will readily clear the certworthiness bar. And in those cases, we may still have to assess likelihood of success on the merits.

Of course these "significant and difficult emergency applications will readily clear the certworthiness bar." A meta point: the Supreme Court is taking far too few cases. Some of the Justices (I think Barrett in particular) are especially trigger-shy with cert-grants. And the Chief Justices will always vote to keep an issue away from the Court unless he sees some utility in deciding it. Rule 10 is not some sort of bright line rule. Let's be very clear. If Justice Barrett or the Chief Justice think an issue is not cert-worthy, that does not speak to whether the issue is of significance or importance. It speak to whether they want to decide the issue at this time.

Justice Kavanaugh, by contrast, has signaled that he is more open to cert grants. I've taken notice of the random dissents from denial of cert on the order list for low-profile cases. Those dissents show that he carefully scrutinizes all of the petitions, and is looking for issues to grant. By my count, Barrett has only dissented from the denial of certiorari once in Waleski v. Montgomery, McCracken, Walker & Rhoads (2023). This case presented a nerdy FedCouts question about "hypothetical jurisdiction"–not exactly something of national importance. (She joined Justice Thomas's dissent, along with Justice Gorsuch.) In most cases, if Barrett is willing to grant, there are almost certainly three more votes to join her.

I agree entirely with Kavanaugh in Poe–especially since it undermines the usefulness of the Mills and Hamburger Mary standard. I see this concurrence, which Justice Barrett joined, as a positive course correction. Mills is no longer the controlling standard.

Principle #7: Eliminating universal injunctions will only solve part of the problem

Justice Kavanaugh addressed the argument advanced by the Trump and Biden Justice Departments: "eliminating nationwide and statewide injunctions by district courts will in turn reduce the number of emergency applications involving new laws that make it to this Court." Eliminating these injunctions, the argument goes, would also reduce forum/judge shopping, since any relief would be limited to the named parties.

Justice Kavanaugh and Justice Barrett tepidly endorse the view expressed by the Gorsuch concurrence:

As I see it, prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law regardless of its impact on this Court's emergency docket. See ante, at 4–5, 13 (GORSUCH, J., concurring in grant of stay).

I do not think these two Justices are entirely on board with eliminating universal injunctions, but they are at least open to the idea. Justice Kavanaugh and Barrett also cited the "ongoing debate" about the meaning of "set aside" in APA Section 706.

In any event, Justice Kavanaugh sees a pragmatic benefit: scaling back universal injunctions would reduce the number of emergency applications. If a preliminary injunction is limited to named parties, the government is less likely to "seek immediate appellate (or Supreme Court) review." Moreover, an application that "concerns only a few individual parties may not clear the certworthiness bar." But Justice Kavanaugh stresses in a footnote that "The scope of the injunction may affect evaluation not only of certworthiness but also of the harms to the government defendant and other affected parties." Again, the concurrence downplays certworthiness as a factor.

Perhaps that observation about cert-worthiness may be right in some cases, but as Justice Kavanaugh observes in the next paragraph, a non-universal injunction can still have a sweeping impact:

Even if a district court enjoins a new federal statute or state law only as to the particular plaintiffs, that injunction could still have widespread effect. For example, the plaintiff might be a State, or the plaintiff might be an association that has many members, or the plaintiffs might file a class action for classwide injunctive relief under Rule 23(b) of the Federal Rules of Civil Procedure. So even if district court injunctions are confined to the plaintiffs, there still will be emergency applications with nationally important effects that come to this Court and clear the certworthiness bar, thereby still requiring this Court to assess the merits.

Again, in practice, certworthiness drops out as a relevant factor. Eliminating universal injunctions, I think, would have a limited impact if these other mechanisms remain available.

Principle #8: Vertical stare decisis can control nationwide injunctions

Contrary to common belief, appeals are not heard directly from Amarillo to the United States Supreme Court. There is in fact a court of appeals that sits over the United States District Court for the Northern District of Texas. And, by my last count, Judge Kacsmaryk has never been mandamused, reassigned, or sanctioned by the Fifth Circuit. To the contrary, members of the Fifth Circuit routinely affirm Judge Kacsmaryk, thus creating emergency appeals to the Supreme Court.  When Senator Schumer and the Judicial Conference single out single-judge divisions, they downplay the fact that a court of appeals reviews any national injunction or vacatur.

Justice Kavanaugh, to his credit, recognizes the important role that vertical stare decisis plays in controlling nationwide injunctions.

Moreover, the effects of a rule prohibiting nationwide or statewide injunctions on this Court's emergency docket can be diminished by vertical stare decisis. The general discussion of the scope of district court injunctions often overlooks the important role of the court of appeals. Even when district court injunctions are limited to the plaintiffs, the losing party in the district court's preliminary injunction proceeding may promptly seek an injunction or stay in the court of appeals. And any ensuing decision by the court of appeals to grant or deny injunctive relief could then have precedential effect—formally, when there is a precedential opinion, or perhaps informally, when there is not—on other district courts in that circuit when other parties seek similar injunctive relief.

Moreover, when there is a circuit wide precedent, the emergency application is more likely to be certworthy:

Put simply, when a court of appeals ruling on an emergency stay or injunction could affect enforcement of a significant new law throughout the circuit, that broader impact may sometimes make the case significant enough to clear the certworthiness bar in this Court.

Again, Justice Kavanaugh keeps lowering the certworthiness bar at every juncture. Indeed Footnote 4 explains why the Idaho case is cert-worhty:

Here, the State's application seeks a stay primarily because of the scope of the injunction. That issue is itself certworthy, and I believe that the State has a likelihood of success on that issue

Justice Jackson's dissent offers some arguments why this interlocutory appeal is not certworthy, and the Court should allow the issue to percolate. Perhaps she is right as far as Rule 10 goes. But I do not think the traditional standard for a cert grant should carry much weight with an emergency application.

Principle #9: Intercircuit splits will be certworthy

During the Trump and Biden administration, the practice has been to seek nationwide injunctions in multiple friendly circuit. Democratic Attorneys General file suit in the Second, Fourth, and Ninth Circuits. Republican Attorneys General file suit in the Fifth, Sixth, and Eleventh Circuits. Though Labrador concerned a state law, Justice Kavanaugh addressed the issue of nationwide injunctions in the federal context.

With any consequential new federal law, moreover, it is likely that different parties will seek preliminary injunctions in multiple circuits. And what happens if different courts of appeals reach different results? For example, what if a major new federal law regulating social media companies, or immigration, or energy producers, or healthcare, or securities markets is enforceable in one circuit but not in another for the several years pending final review on the merits? That disuniformity could often be highly problematic. Again, an emergency application to this Court in those circumstances could clear the certworthiness bar, meaning that we may still have to consider likelihood of success when deciding it.

Principle #10: The Court should grant cert before judgment to assess likelihood of success on the merits

The nine prior principles support a conclusion: the "Court cannot avoid evaluation of the merits in at least some emergency applications involving consequential new laws." Which leads to a fundamental question: "What process should this Court employ for assessing likelihood of succession the merits with respect to an emergency application, particularly in cases involving important new federal or state laws?" Justice Kavanaugh observed that the Court "should use as many tools as feasible and appropriate." Among these tools are: "taking more time (if available), ordering supplemental briefing, or inviting amicus briefs. In certain circumstances, moreover, the Court might benefit from oral argument or may even grant certiorari before judgment." I've described these features as the "Rocket Docket." Justice Kavanaugh pointed to some recent cases, including Biden v. NebraskaNFIB v. OSHA, and Biden v. Missouri. He added, the Court "should continue to be flexible in employing appropriate procedures so as to best decide important emergency applications."

It is no surprise that many of the leading cases concerned the pandemic. Justice Kavanaugh addressed this issues directly in Footnote 5:

5During the COVID–19 pandemic, the Court sometimes found it important to issue opinions on COVID–19-related legal questions, in part because of the widespread assumption that the pandemic would largely be over before any final ruling on the merits in the court system. Therefore, the emergency docket during the COVID–19 pandemic in essence was the merits docket as to certain COVID–19-related issues. Not surprisingly, this Court's emergency docket, while still robust, has shrunk in the years since COVID–19.

Bravo. The only way to decide issues in the fast-moving pandemic was through short emergency orders. The amount of criticism the Court received during that time was completely disproportional to the difficult circumstances the Court was facing. And, in case anyone has not noticed, the number of emergency cases has "shrunk" in recent years with COVID gone.

Principle #11: The Court need not write an opinion when deciding an emergency docket case

One of the more shortsighted criticisms of the emergency docket is that the Supreme Court does not issue a fully-reasoned opinions. These critics should be careful what they wish for. A rushed, precedential decision, could be far more harmful to their cause than an unsigned per curiam order that sets no precedent.

Justice Kavanaugh explains this calculus with clarity:

[A]n opinion for the Court addressing likelihood of success on the merits for an emergency application can sometimes come at a cost. A written opinion by this Court assessing likelihood of success on the merits at a preliminary stage can create a lock-in effect because of the opinion's potential vertical precedential effect (de jure or de facto), which can thereby predetermine the case's outcome in the proceedings in the lower courts and hamper percolation across other lowercourts on the underlying merits question. (Of course, that can happen to a lesser degree even when the Court simply issues a bare-bones order granting or denying relief.) So in my view, issuing opinions for the Court with respect to emergency applications may sometimes be appropriate, but we should exercise appropriate caution before doing so.

I agree entirely. If there is a choice between issuing a clear ruling quickly, versus issuing more fulsome, but confusing ruling with more time, the former option is often preferable.


There is much to consider and study in Justice Kavanaugh's concurrence.

A final, random observation. Justice Kavanaugh cited Chief Justice Rehnquist's in chambers opinion, Rubin v. United States (1998). If my memory serves, Brett Kavanaugh served under Independent Counsel Starr in this case. (Update: I confirmed that Kavanaugh was counsel in this case before the Supreme Court. The brief was available on microfiche.)