The Volokh Conspiracy

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Justice Barrett Evolves Again On The Emergency Docket In Moyle

Cert before judgment will no longer be granted unless the applicants prove they will suffer enough irreparable harm.


As I write this post on Wednesday evening, the vote on the stay in Moyle v. United States seems to be 6-3. Or at least this was the vote on May 23, 2024. Of course, things could have changed. Indeed, the votes may be different when this case is released between now and the end of the term. And, applying Dobbs leak logic, perhaps the release was designed to lock in votes. Who knows? But for now, I'll presume that the opinion remains unchanged.

The most important opinion here is from Justice Barrett. She is the Court's center. And, as I've said before, she seems to still be figuring stuff out on the job. Her Moyle concurrence expresses open regret to granting certiorari before judgment and a stay–not just because the facts on the grounds have changed, but that the Court accelerated the process when it shouldn't have. She also seems mad at Idaho for (as she sees it) exaggerating the justification for the stay.

I think we've now seen yet another evolution in Justice Barrett's approach to the emergency docket. In Roman Catholic Diocese, she was the fifth vote to enjoin New York's lockdown law. (Remember COVID?) But she later retreated from that standard. In Does v. Mills, she indicated she would only grant relief if a case was "cert worthy." And when Barrett is the fourth vote for cert, she gets to define what cert-worthy means! More recently, in Labrador v. Poe, she joined Justice Kavanaugh's concurrence, which said emergency relief should be granted primarily based on the likelihood of success on the merits. That opinion also downplayed the importance of "irreparable harm." Kavanaugh wrote:

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.

I thought Justice Kavanaugh was exactly right in Labrador. But Justice Barrett's Moyle concurrence runs in the opposite direction. It focuses exclusively on the irreparable harm factor, and does not even mention the likelihood of success on the merits:

To be sure, the text of the two laws differs: Idaho's Act allows abortion only when "necessary to prevent the death of the pregnant woman," Idaho Code Ann. § 18-622(2)( a)(i), while EMTALA requires stabilizing care to prevent "serious jeopardy" to the woman's health, 42 U. S. C. § 1395dd( e )(1 )(A)(i). But Idaho represents that its exception is broader than the United States fears, and the United States represents that EMTALA's requirement is narrower than Idaho fears. That matters in assessing Idaho's irreparable harm for purposes of the stay. The dramatic narrowing of the dispute-especially the Government's position on abortions to address mental health and conscience exemptions for healthcare providers-has undercut the conclusion that Idaho would suffer irreparable harm under the preliminary injunction. Contrary to Idaho's concerns at the stay stage, the Government's interpretation of EMTALA does not purport to transform emergency rooms into "federal abortion enclaves governed not by state law, but by physician judgment, as enforced by the United States's mandate to perform abortions on demand." Stay Reply Brief in No. 23A470, p. 6 (citation omitted). Nor does it purport to deprive doctors and hospitals of conscience protections. Cf. id., at 15. Thus, even with the preliminary injunction in place, Idaho's ability to enforce its law remains almost entirely intact.

The last sentence is the most important. Idaho's law "remains almost entirely intact." Put differently, the state is suffering some irreparable harm, but not enough irreparable harm to justify a stay.

Barrett states the issue directly:

The Court's grant of a stay reflected, among other things, its determination that Idaho had satisfied that burden. Now, based on the parties' representations, it appears that the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances.

And let's be clear. When Barrett says "the Court," she is referring to herself. L'État, c'est moi. She was no doubt the critical vote to proceed on an expedited basis. This is her personal regret.

Justice Alito's dissent claps back with a citation to Chief Justice Roberts's in chambers decision in Maryland v. King:

As for the remaining three, their only explanation is that "the injunction will not stop Idaho from enforcing its law in the vast majority of circumstances" and that therefore Idaho cannot show that it will be irreparably harmed by allowing the injunction to remain in place during the pendency of the appeal. Ante, at 7 (Barrett, J., joined by Roberts, C. J., and Kavanaugh, J., concurring). That justification is patently unsound. "'[A]ny time 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). And in this case, Idaho's injury is not abstract. As I will explain, it is very likely that the preliminary injunction will lead to more abortions, including in at least some cases where the fetus is viable. The State of ldaho wants to prevent that; the preliminary injunction stands in its way. Isn't that enough to constitute irreparable harm?

For Justice Barrett, that harm is not enough.

I don't point out the changes from Mills to Labrador to Moyle to show that Justice Barrett is being inconsistent. I am not making that claim at all. Instead, with Justice Barrett, each case is a new day. She is figuring things out. What mattered to her in April is different than what mattered to her in May. Indeed, Labrador was released about a week before oral argument in Moyle. I bet she would take that join back if she could. Or she may just not join Justice Kavanaugh's musings going forward.

And what about Justice Kavanaugh. He put together what I thought was a unifying theory of the emergency docket: grant cert before judgment, hold expedited oral argument, and rule based on the likelihood of success on the merits. Sounds like a prudent plan to me. But the Moyle concurrence did just the opposite. Justice Kavanaugh may have been content to dissolve the stay in light of the conscience protections he extracted from the Solicitor General in Alliance for Hippocratic Medicine. But why join the Barrett concurrence that disregards everything Kavanaugh established in Labrador? Combine Moyle with the Kavanaugh-Barrett split in Rahimi, and we are seeing the widening a chasm. (I will address the gap between Barrett-Roberts-Gorsuch and Alito-Thomas-Gorsuch in another post.)

Going forward, expect Justice Barrett to be a consistent vote against granting certiorari before judgment if there is even a possibility that the facts may shift a bit. Cert before judgment will no longer be granted unless the applicant prove they will suffer enough irreparable harm. At bottom, Justice Barrett prefers cases perfectly presented to her in the regular order, regardless of the the urgency of the matter. And if the parties do not meet some Barrett-specific burden of proof–cert-worthiness or enough irreparable harm–relief will be denied.

I realize that conservatives do not like when I criticize Barrett, but everyone should open their eyes to her clear voting pattern.