The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Standing in the Shadow Docket
Should the Court not consider jurisdiction unless there is irreparable harm?
Today the Supreme Court issued another order on the emergency docket. In Office of Personnel Management v. American Federation of Government Employees, a federal district court ordered the reinstatement of 16,000 probationary employees. The district court found that the unions and other organizations had standing based on a "diversion of resources" theory of standing under Havens Realty. This theory, which survived Acheson, has been under seige for some time, and should be extirpated soon enough. The Solicitor General's application explains why that argument does not work:
In granting the preliminary injunction, the district court relied exclusively on the standing of organizational respondents whose members are end-users of government services. See App., infra, 39a, 47a. Significantly, in entering relief against two of the enjoined agencies, the court appeared to rely solely on the theory that the organizations themselves suffered an injury by having to "divert" organizational resources to "counteract[]" the effects of the agencies' actions. See App., infra, 20a (citation omitted); see id. at 20a-21a; see also D. Ct. Doc. 18-7, ¶ 11; D. Ct. Doc. 18-3, ¶ 6. That standing theory is squarely foreclosed by this Court's decision in Alliance for Hippocratic Medicine, which held that "divert[ing] [organizational] resources in response to a defendant's actions" is not an Article III injury-in-fact. 602 U.S. at 395.
The Court's per curiam order granted the application on the grounds that the organizational plaintiffs lack standing. But the Court's brief order does not cite AHM, but instead cites Clapper.
The District Court's injunction was based solely on the allegations of the nine non-profit-organization plaintiffs in this case. But under established law, those allegations are presently insufficient to support the organizations' standing. See, e.g., Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013). This order does not address the claims of the other plaintiffs, which did not form the basis of the District Court's preliminary injunction.
The government's application does not even mention Clapper so it is unclear the exact grounds on which the Plaintiffs lacked standing. Where is the self-inflicted injury?
In theory at least, the other plaintiffs may be able to establish standing, but that matter will have to wait for another day. More likely than not, their cases are over. Here, the Court is sending yet another clear signal: challenges to the removal of federal employees should be brought through the usual channels at the MSPB and not through a nationwide injunction.
Justices Sotomayor and Jackson would have denied the application. I've seen this case reported as a 7-2 split but that is not quite right. On the shadow docket, just because a Justice does not note their dissent does not mean they agree with the majority. At a minimum, there were five votes. I think it safe to say that Justice Kagan did not join the Clapper analysis. Chief Justice Roberts and/or Justice Barrett joined the majority. My money is on Barrett. She is a standing stickler, so this would have been an easier case than some of the others. Roberts probably did as well. So the vote is most likely 6-3.
The most intriguing opinion is that of Justice Jackson. She says that the Court should not have even considered the jurisdictional argument because the government failed to show "irreparable harm."
Justice Jackson would have declined to reach the standing question in the context of an application for emergency relief where the issue is pending in the lower courts and the applicants have not demonstrated urgency in the form of interim irreparable harm. See Department of Education v. California, 604 U. S. ___, ___ (2025) (Jackson, J., dissenting) (slip op., at 1–2). Thus, she would have denied the application.
This statement is consistent with her opinion in Department of Education v. California. There, she referred to jurisdiction, venue, and sovereign immunity as "shiny" distractions. This is definitely a new argument: the Court should not even consider "standing" in the shadow docket. But that argument can't possibly be right. Jurisdiction is the basis of the judicial power. If a lower court issued an order in the absence of jurisdiction, the act was an usurpation of the judicial power. If ever there is a need for the Supreme Court to intervene, it is where the lower court lacked jurisdiction. I think it is telling that no one else joined Justice Jackson here.
Jurisdiction is not just some "shiny" object.
