What Matters On The Shadow Docket? The Merits or the Equities?

Justice Kavanaugh thought NetChoice would win on the merits, but "the balance of harms and equities" did not favor allowing the injunction to go into effect.

In CASA v. Trump and Labrador v. Poe, Justice Kavanaugh explained that the most important element in emergency applications is whether the movant is likely to succeed on the merits.

But in NetChoice v. Fitch, Justice Kavanaugh found that an injunction was not proper, even though he thought NetChoice would prevail on the merits.

I concur in the Court's denial of NetChoice's application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. See Response in Opposition 37–39. To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members' First Amendment rights under this Court's precedents. . . . In short, under this Court's case law as it currently stands, the Mississippi law is likely unconstitutional.Nonetheless, because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time, I concur in the Court's denial of the application for interim relief.

How can these cases be reconciled? Perhaps NetChoice simply isn't as important as the issue in CASA. This case involves a state law, rather than a "major new federal statute[] or executive action[]." And because this is a state law, there are no concerns about national uniformity for the "interim before the interim." (Sort of like the shirt before the shirt.) In other words the state has an interest in enforcing, at least for now, what Kavanaugh sees as an unconstitutional speech restriction. I suppose if Mississippi takes any enforcement action, tech companies can rest assured they will prevail on appeal. Then again, Labrador was also a state case. I should remind everyone, once again, that the Fifth Circuit is to the right of the Supreme Court.

Like in CASA, I appreciate that Justice Kavanaugh is breaking the fourth wall, and explaining to us why the Court is doing what it is doing. I don't know that I fully understand the distinctions. And there is no actual discussion of the equities--just a citation to a few pages of the response brief. But that is more analysis than the other members of the Court are providing. And would it really burden Justice Kagan to write something short about her decision after complaining about unreasoned emergency docket orders?

Comments

[A Japanese Student]

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___ (2020) (quoting Elrod v. Burns, 427 U.S. 347 (1976) (plurality op.))

[Martinned]

I wonder if there's another variable that might explain the difference between those two cases?

[wvattorney13]

The only thing that makes this concurrence remotely make sense is that Kavanaugh believes that the Court's precedents are wrongly decided and thinks they should be overruled.

Or maybe this is more of "you all can wait a few years before we enforce your right" much like the AR-15 case.

[ReaderY]

Perhaps a rationale for the distinction is that Netchoice does not have anywhere near the same level of interest in the outcome as occurred in CASA. Being unconstitutionally detained and deported is a much greater level of harm than temporarily not being able to access porn. Moreover, Netchoice’s direct interest is primarily financial.

[Martinned]

Sure. It might also matter whether one of the parties to the suit has a name that starts with a T and/or ends in rump.

[John F. Carr]

I would consider financial motive when balancing the equities. A streaming service wanting to show porn to children to make a buck is less important than a drag queen story hour performer wanting to flash children to send a message.

[Bubba Jones]

The obvious answer is to respect the decision of the appeals court.

He thinks they are wrong, but they haven't had full argument, and the harms are perceived as minimal, so this can wait.

[A Japanese Student]

If only the court of appeals followed that reasoning as well.

[David Nieporent]

The problem is that the appeals court didn't apply that same deference to the trial court. The 5th Circuit didn't actually reach a decision; it just issued a one sentence stay order of the actual decision reached by the district judge.

[Please, Daivd, Seek Help]

Suppose someone was a cynic and their view was that, actually, most (perhaps not all) of the processes, rules, and distinctions drawn in legal writing are actually post-hoc justifications for some underlying policy stance. They might argue that parsimony dictates the simplest explanation for resolving apparently incoherent behavior is to view the behavior as actually incoherent and the writer as a hack. They might be unconvinced by people who say "well, actually, if you think through all of this, it's the blah blah blah doctrine, a novel innovation that is completely coherent" -- especially if the same people give that answer many many times and _almost_ always in line with their underlying preferences.

[MaddogEngineer]

Oh well, I guess we need to add Kavanaugh to the list of justices that need to resign, for having disappointed Blackman.

[Stephen Lathrop]

The question is not, "What Matters on the Shadow Docket?" The question is, "What's the matter with the shadow docket?"

The answer is that it is being used to circumvent the constitutional constraint of Supreme Court jurisdiction to, "Cases and Controversies." The Court just picks out some political bit where a majority wants influence, and decides the case that way—while supplying a pretense that some undefined future evolution of the case will years hence deliver more comprehensive review.

A Court willing to do that in a case as freighted with Constitutional implication as Trump v. United States is a Court out of its depth, out of control, and out of legitimacy.

[Davy C]

I don't think you can say there is no case or controversy. There's obviously a case of some sort if the federal court system is hearing it in the first place, and there's obviously a controversy if one party is requesting an appeal and the other wants the lower ruling to stand.

Perhaps SCOTUS should simply not rule in most of these preliminary injunction cases, unless there's a circuit split on *how* such cases should be decided. But that's not the same as there being a constitutional problem with appealing them to SCOTUS.

[Stephen Lathrop]

Of course there is a case. And of course there is a controversy. The question with this Court is whether either will get a hearing.

I suggest a rule that no case heard by SCOTUS will establish precedent unless the issues tried below get full review as to both merits and procedures, with a full opinion from the Court which covers both the facts and the law. No more, "We can dispose of this one without hearing the facts. Just make up a procedural novelty, and decree this case violated it."