The Volokh Conspiracy
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Justice Kavanaugh's CASA Concurrence Moves Away From Abstractions About The Shadow Docket To Focus On The "Interim Before The Interim"
The Supreme Court may not have to intervene for "run-of-the mill cases" but will intervene for "major new federal statutes or executive actions."
Justice Kavanaugh's concurrence in Trump v. CASA is one of his most significant opinions to date. It ranks up there with his concurrence in Labrador v. Poe and his dissent in Calvary Chapel. In CASA, Justice Kavanaugh sketches how he views the role of the Court with regard to the "interim before the interim." Here, Kavanaugh develops ideas that were not present in the briefing, but instead seem novel enough. That's not to say I agree with everything Kavanaugh wrote. I don't, as I'll note before. But this opinion reflects significant original thought. Indeed, I thought Kavanaugh was the most prepared justice during the CASA oral argument.
At a high level, Justice Kavanaugh wants us to move beyond the abstraction of TROs and the the emergency docket. The reality is that when Presidents take executive actions, district courts will be asked to stop the policy. Kavanaugh labels this immediate period as the "interim before the interim."
The Court's decision today focuses on the "interim before the interim"—the preliminary relief that district courts canaward (and courts of appeals can approve) for the generally weeks-long interim before this Court can assess and settle the matter for the often years-long interim before a final decision on the merits.
Regardless of what the lower court does, the Supreme Court will settle the "interim" status as the ultimate decision-maker.
I write separately simply to underscore that this case focuses on only one discrete aspect of the preliminary litigation relating to major new federal statutes and executive actions—namely, what district courts may do with respect to those new statutes and executive actions inwhat might be called the "interim before the interim."
This Court has therefore often acted as the ultimate decider of the interim legal status of major new federal statutes and executive actions. See, e.g., Ohio v. EPA, 603 U. S. 279 (2024); Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, 598 U. S. ___ (2023); National Federation of Independent Business v. OSHA, 595 U. S. 109 (2022) (per curiam); Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758 (2021) (per curiam); see also Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2– 3).
After today's decision, that order of operations will not change. In justiciable cases, this Court, not the district courts or courts of appeals, will often still be the ultimate decisionmaker as to the interim legal status of major new federal statutes and executive actions—that is, the interim legal status for the several-year period before a final decision on the merits.
I think the outrage about the "shadow docket" has run its course. The simple reality now is that lower courts serve as an effective councils of revision for every act the President takes, and the Court's emergency docket provides a quick review of those actions. You can think of it as lower-courts providing a veto, which the Supreme Court can override.
I do have to quibble with one aspect of Kavanaugh's analysis. He repeatedly uses the phrase "federal statutes and executive actions."
First, in my view, there often (perhaps not always, but often) should be a nationally uniform answer on whether a major new federal statute, rule, or executive order can be enforced throughout the United States during the several-year interim period until its legality is finally decided onthe merits.
Consider just a few of the major executive actions that have been the subject of intense preliminary-injunction or other pre-enforcement litigation in the past 10 years or so, under Presidents of both political parties. They range from travel bans to birthright citizenship, from the Clean Power Plan to student loan forgiveness, from the OSHA vaccine mandate to the service of transgender individuals in the military, from Title IX regulations to abortion drugs. And the list goes on. Those executive actions often are highly significant and have widespread effects on many individuals, businesses, governments, and other organizations throughout the United States.
But every policy he mentions is an executive action. In modern times, it is very rare to see an injunction against a federal statute, mainly because federal statutes are so rare. Indeed, even the federal courts that found the Affordable Care Act unconstitutional did not issue an injunction. (This background makes the ex parte TRO against the One Beautiful Bill even more galling.) Accordingly, Justice Kavanaugh recognizes that as legislation becomes less frequent, executive action becomes more frequent.
The volume of preliminary-injunction and other preenforcement litigation over new federal laws and executive actions coming to this Court has been growing in recent years. That trend is in part the result of the increasing number of major new executive actions by recent Presidential administrations (of both political parties) that have had difficulty passing significant new legislation through Congress.
I think the difference between a statute and executive action should matter. In my article, Bilateral Judicial Reform, I proposed that injunctions of federal and state statutes would automatically be stayed, while injunctions of federal and state executive actions would not be automatically stayed. Statutes have the backing of democratic accountability, and should be allowed to go into effect. Executive actions, however, are taken when the democratic process does not support the change. Therefore, the presumption should be to maintain the ex ante status quo before the executive action was taken.
Kavanaugh further explains that the criteria for the Court's intervention on the shadow docket should turn on whether the executive action is "major," in contrast with a "run-of-the-mill" case:
That temporary geographic, organizational, and individual variation in federal law might not warrant this Court's intervention in run-of-the mill cases—which is why it makes sense that this Court denies applications for interim relief when the Court is unlikely to later grant certiorari. See Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief ). But in cases involving major new federal statutes or executive actions, uniformity is often essential or at least sensible and prudent. In those kinds of cases, disuniformity—even if only for a few years or less—can be chaotic. And such chaos is not good for the law or the country.
And when is a case "major"? I suppose when it presents a "major question," which triggers another doctrine.
Here, Kavanaugh is echoing his Labrador concurrence. The traditional understanding of cert-worthiness, which included judgments about circuit splits and percolation, is out. Instead, a case that is "major" is necessarily cert-worthy. What matters for shadow docket relief is "majorness."
Does everyone agree with Kavanaugh on this point? Perhaps not. Yet, in a few spots, Kavanaugh seems to take shots at his colleagues--most likely Chief Justice Roberts and Justice Barrett. For example, he chastises his colleagues for "hiding in the tall grass" when a big case arrives.
When a stay or injunction application arrives here, this Court should not and cannot hide in the tall grass. When we receive such an application, we must grant or deny.4 And when we do—that is, when this Court makes a decision on the interim legal status of a major new federal statute or executive action—that decision will often constitute a form of precedent (de jure or de facto) that provides guidance throughout the United States during the years-long interim period until a final decision on the merits.
Kavanaugh later explains that life-tenured judges should not avoid "major" cases because they are controversial:
But when it comes to the interim status of major new federal statutes and executive actions,it is often important for reasons of clarity, stability, and uniformity that this Court be the decider. And Members of the Court have life tenure so that we can make tough calls without fear or favor. As with the merits docket, the Court's role in resolving applications for interim relief is to neutrally referee each matter based on the relevant legalstandard. Avoiding controversial or difficult decisions on those applications is neither feasible nor appropriate.
"Hiding in tall grass" and "Avoiding controversial or difficult decisions" sounds like a fancy way of saying his colleagues lacks judicial courage. This is a charge that Justices Thomas and Alito have made before, but it seems that Justice Kavanaugh is now taking up the mantle. Perhaps there is some frustration on the part of Justice Kavanaugh here that is being vented.
I think the past two terms have been Justice Kavanaugh's best on the Court. Justice Gorsuch's output this past term was not particularly memorable. Indeed, I think Justice Gorsuch has hit something of a rut. Chevron is gone, the non-delegation doctrine is not coming back, and he made no effort to explain how to reconcile Bostock with Skrmetti. This was not Gorsuch's best term. I'll address Justice Barrett's opinion in CASA in a subsequent post.
