Ten Thoughts on Starbucks, Corp. v. McKinney

Brief responses based on the second oral argument this morning:

1. Starbucks wins.
2. The Court will hold, as it should, that the four-factor test should be applied. The general principle here (see Weinberger v. Romero-Barcelo, Nken, e.g.) is that we presume all the traditional principles of equity apply unless there is a clear statement by Congress setting them aside.
3. Note that the four factors do not exhaust the equitable considerations (there are maxims, defense, other equitable principles). In Justice Gorsuch's phrase, "the full considerations of equity."
4. Note, too, that insisting on the four-factor test does show that equity is a developing tradition. The four-factor test did not exist in 1947. So the logic here has to be: the statute references equity, equity includes the considerations for a preliminary injunction, some of those traditional considerations have been crystallized in the four-factor test, and so courts should use the four-factor test for injunctions under the statute. That is correct: the right approach is not to apply 1947 equity to a 1947 statute, and 1952 equity to a 1952 statute.
5. Good recognition that the preliminary injunction is just a "quick look" at the merits (Justice Gorsuch's term) and does not control the eventual determination of the merits.
6. The Court should take into account and emphasize what is really the fundamental point of the preliminary injunction, which is preserving the trial court's ability to decide the case. Camenisch is a strong case on this, and it's a theme that doesn't come through in Winter (for reasons specific to the posture of that case)--it's an important theme about the preliminary injunction that the lower courts right now are losing sight of. Relatedly, it actually fits the context of this statute very nicely: the preliminary injunction should be given if needed to preserve the Board's ability to adjudicate the case (which fits with one of Lisa Blatt's answers about irreparable injury).
7. Although the justices pressed the Board counsel about the "reasonable probability" formula instead of "likelihood of success on the merits," it's worth noting that both formulas and others have a long pedigree in equity. The latter doesn't start dominating until four-factor tests get developed in the 1970s. And there are actually good arguments for the former, because it reduces the intensity of the merits focus. But as a matter of current Supreme Court doctrine, it's not really tenable to have to this special carve-out of a lower standard for one statute, given the lack of a clear statement to that effect from Congress.
8. There was some concern, especially from Justice Jackson, about the importance of the statutory context. Equity has a good way to deal with that. The usual test, and all of the usual principles not found in the test, can be applied, but in applying them, the court should be guided by the policies enacted in the statute. "Equity follows the law" is the maxim that expresses this willingness of the judge applying equitable powers to take cues from the statute.
9. Note that "just and proper" is a hendiadys here, and that seems obvious and unobjectionable to everyone. As a hendiadys, it's a fitting way to refer to the traditional equitable analysis.
10. There was repeated speculation about whether this will be a short opinion. It should be, and I think it will be. Combining points 2 and 8 in this list would bring together the concerns expressed by all the justices. But as critical guidance for the lower courts about what the preliminary injunction is for, reiteration of points 3, 5, and 6 would be very valuable.