The Volokh Conspiracy

I know that everyone's following SCOTUS in this final week of the term, but I'd like to offer some quick thoughts about an important church-and-state decision a couple of days ago in Oklahoma. In Drummond v. Oklahoma Statewide Virtual Charter School Board, the Oklahoma Supreme Court ruled 6-2 that the state had violated state and federal law by contracting with a Catholic school to operate a charter school. Although I favor educational pluralism and am open to persuasion, under current SCOTUS religion clause jurisprudence, the Oklahoma court probably got this one right.

Charter schools are a hybrid: publicly chartered (hence the name) and funded but independently managed. Unlike private schools, but like regular public schools, they're free. The state picks up the tab. But unlike regular public schools, and like private schools, charter schools rely on parental choice. Only students whose parents have selected a charter school attend it, though a charter school must accept all who apply. And although charter schools have more flexibility than regular public schools—that's the whole point, to allow competition in the interests of the students—charter schools are more heavily regulated than private schools in terms of curriculum, teacher qualification, and other things.

In Drummond, the Oklahoma Charter School Board contracted with St. Isidore of Seville Catholic Virtual School to run a charter school. St. Isidore forthrightly asserts that it will incorporate Catholic teachings into every aspect of its curriculum. Although most contracts the school board makes with charter schools prohibit religious affiliation, the school board made an exception in this case.

This week, the Oklahoma Supreme Court ordered the school board to rescind its contract with St. Isidore. The contract, the court said, violated the Oklahoma Charter Schools Act, which requires charter schools to be non-sectarian (as I say, the board made an exception for St. Isidore), the Oklahoma Constitution, which prohibits public money from being used, directly or indirectly, to benefit a religious institution, and the US Constitution, which prohibits the establishment of religion. The court also rejected St. Isidore's argument that rescinding its contract with the school board would violate the school's free exercise rights under the U.S. Constitution.

It's not quite as clear as the Oklahoma court makes it seem, but the decision is probably correct, at least respecting the federal constitutional claims. Legally speaking, St. Isidore is caught in a dilemma—a dilemma that its hybrid nature as a charter school creates. If St. Isidore qualifies as a public school, there's an obvious Establishment Clause problem. St. Isidore argued that it shouldn't be seen as a public school, but as an independent contractor. But the Oklahoma statute specifically provides that charter schools are "public." And that's not just a matter of form, but also substance. As a charter school, St. Isidore is funded entirely by the state, must take all students who apply, and must comply with curricular and other requirements that don't apply to private schools.

On the other hand, if St. Isidore is a private actor, the US Supreme Court's recent free exercise cases may not help it too much. In Carson and Espinoza, the Court ruled that the state cannot exclude private religious schools from tuition assistance programs simply because they are religious—that would violate the schools' right to practice their religion. That seems correct to me. But in those cases, the Court stressed that public funds went to private schools through the filter of parental choice. Parents who received tuition assistance designated which schools would receive the money.

St. Isidore would be entirely free, by contrast, and Oklahoma would be funding the school directly. True, the amount of money St. Isidore would receive would depend, presumably, on the number of students it enrolled—and that would depend on parental choice. But the state is more in the foreground (and the parents more in the background) in this case than in either Carson or Espinoza, and it feels different, somehow.

So, either way, whether St. Isidore is a public school or a private school, it seems to me it should lose this case. That's a pity, because I'm sure the educational offerings at St. Isidore would exceed those in many other schools. Perhaps the school should reorganize as a purely private school and participate in Oklahoma's voucher program. Anyway, St. Isidore will surely seek cert, so we'll see what SCOTUS has to say. But not this week!

Alfonso Lopez and Zakey Rahimi share much in common. They both lived in Texas. They both possessed a firearm in violation of federal law. They both moved to dismiss their indictment on the ground that the federal law was unconstitutional. The Fifth Circuit agreed to dismiss both indictments. Both of their cases were appealed to the Supreme Court. And Justice Thomas agreed with both of their claims. That's where the similarities stop.

In United States v. Lopez, Chief Justice Rehnquist "struck down" the Gun-Free School Zones Act, without considering whether it may be constitutional as applied to Mr. Lopez. But for Mr. Rahimi, the Supreme Court treated his motion to dismiss as a facial challenge, and only considered whether Section 922(g)(8) could be validly applied to him. How to explain this disparate treatment?

Let's start with the facts of Lopez. All know that the Court declared the federal statute unconstitutional because the mere possession of a gun in a school was not "economic activity," and thus lacked a sufficient nexus with interstate commerce. But what most people do not know is that someone paid Lopez $40 to give the gun to someone at the school. By any definition, that payment is an economic transaction that would clearly satisfy the Lopez test. (Indeed, Gonzales v. Raich was a good vehicle because money did not change hands.) Here is how the Solicitor General described the facts in the Lopez merits brief:

2. On March 10, 1992, respondent, then a twelfth-grade student at Edison High School in San Antonio, Texas, arrived at school in possession of a concealed .38 caliber handgun, together with five bullets. In response to an anonymous tip, school officials confronted respondent, who admitted that he was carrying the weapon. He explained that an individual he identified as "Gilbert" had given him the gun to deliver to another individual after school for use in what respondent described as a "gang war." Respondent stated that he was to receive $40 for delivering the weapon. See Pet. App. 2a. [U.S. v. Lopez, 1994 WL 242541, at *6–7 (U.S.Pet.Brief,1994).]

Congress could have criminalized Lopez's actions, even under the new Lopez test. But the Court still accepted Lopez's motion to dismiss the indictment as a facial challenge, and declared the statute unconstitutional in all regards. Perhaps the Court found that because the statute lacked a jurisdictional hook, it didn't matter whether Lopez's individual conduct fell within the scope of the interstate commerce power. Judge Ho hinted at this possibility in Footnote 10 of his Kersee concurrence (which I wrote about here). I am uncertain because neither the SG's brief, nor Chief Justice Rehnquist's opinion, mentioned Salerno. The issue was simply not addressed.

Fast forward to Rahimi. The Solicitor General's opening brief did not even mention Salerno or any arguments concerning facial challenges. Rahimi's merits brief only mentions the facial challenge in passing. The SG's reply brief devotes a single paragraph to the facial challenge:

Moreover, Rahimi brought, and the Fifth Circuit sustained, a facial challenge to Section 922(g)(8). See Pet. App. 2a. On such a challenge, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Objections to applying Section 922(g)(8) to other factual scenarios, see Resp. Br. 46-47, cannot justify invalidating the statute on its face or as applied to Rahimi. Facial invalidation would be particularly inappropriate given that Section 922(g)(8) is subject to a severability clause, which states that the invalidation of one of the statute's applications does not affect "the application of such provision to other persons not similarly situated or to other circumstances." 18 U.S.C. 928.

During the oral argument, Justice Gorsuch asked SG Prelogar several questions about the facial challenge. And he posed the same question to Matthew Wright, counsel for Rahimi. This issue was on Gorsuch's mind. Wright directly compared his case to Lopez.

Neil Gorsuch: And the same thing when it comes to temporary dispossession. I understand your concern about permanent dispossession, but, again, that isn't what's necessarily before us in a facial challenge, where we have to ask is it unconstitutional in all of its applications, right?

J. Matthew Wright: Your Honor, that -- that test for faciality, I -- I think, is primarily remedial. It typically comes up in the civil context where someone is suing to enjoin the enforcement of a statute and -- and so the Salerno test it's called, you know, comes into play as to, typically, that assumes there is a valid application or a space of valid application of the statute, and then the complaint is either there's too much outside or my case is outside or something like that. Ours is a facial challenge in the way that Lopez was a facial challenge, where the facts of Lopez were clearly within Congress's power under the Commerce Clause.

This Court found the facts of that case were Person A was going to pay Lopez $40 to give that gun to Person C after school. That's within the commerce power, but the statute itself was not within Congress's power to enact.

And so that statute failed as it then existed, the pre-amendment version of the Gun-Free School Zones Act, on its face.

That argument obviously did not persuade Justice Gorsuch, whose solo concurrence relied almost entirely on Salerno.

Later during the argument, Chief Justice Roberts returned to the theme:

John G. Roberts, Jr.: Well, but it -- it's a facial challenge.

J. Matthew Wright: Right.

John G. Roberts, Jr.: And I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.

J. Matthew Wright: Yes.

John G. Roberts, Jr.:
And why isn't that the end of the case?

J. Matthew Wright: Because --

John G. Roberts, Jr.
All you need to do is show that there are circumstances in which the statute can be constitutionally applied.

And that was the end of Rahimi's case.

The Lopez Court entertained a wide-range of hypotheticals why the Gun-Free School Zone Act, and indeed non-existent legislation, would be unconstitutional--even as Lopez himself was paid to deliver the gun! But in Rahimi, the Court narrowly construed the motion to dismiss the indictment as a "facial challenge," and refused to even consider any other applications in which the statute might be unconstitutional--even the very circumstances that the criminal defendant faced. Rahimi had the burden to show that the statute was unconstitutional in every circumstance, but Lopez did not have that burden. I often find myself writing that different litigants seem to have different burdens at the Supreme Court.

I am not an expert in this area, and I've been unable to find any clear guidance. Those who specialize in federal criminal defense may have some insights here. Please drop me a line. But at the very least, I see a tension between how the Court treated Lopez's challenge and how the Court treated Rahimi's challenge.

There are six cases remaining. The Court will be in session tomorrow. Friday, June 28. The Chief Justice did not announce that Friday will be the final day, so we will come back next week. The Court has announced that Monday, July 1 will be an opinion day. Here are my predictions for the final six cases.

From the January sitting, only Loper-Bright/Relentless remains. Chief Justice Roberts and Justice Kavanaugh have not written from that sitting. Kavanaugh already has six opinions, so I think he is done for the term. Chevron is for the Chief.

From the February sitting, Corner Post and the NetChoice cases remain. Alito and Barrett have not written from that sitting. I predict Barrett will write a tight opinion in Corner Post, a nerdy procedure case. And Justice Alito will write for a very fractured Court in the social media cases.

From the April sitting, with the Moyle DIG, there were nine cases argued, six of which have already been decided. I predict that Chief Justice Roberts has the Trump immunity case. There is no way he gives that case up. I predict Justice Gorsuch has Fischer. He loves to hate on federal criminal law. And Justice Jackson has Grant's Pass. I think this case can be one of the surprise decisions of the term. Walking in, I thought there was no way the homeless people would prevail, but the oral argument suggests this opinion may be hard to write.

And, if I had to guess, Roberts will hold Chevron and Trump for Monday. Dump it during the Fourth of July weekend.

These predictions are worth what you paid.

In SEC v. Jarkesy, Chief Justice Roberts offers the Court's latest opinion on the Seventh Amendment. Although most of the attention will rightly go to the public rights discussion, I want to briefly note and recap a few thing from the Court's Seventh Amendment primer, especially related to law and equity. (My thoughts on this are informed by Equity, Law, and the Seventh Amendment.)

1. The Court defines what the Seventh Amendment covers by starting in reverse, with what it doesn't cover. I.e., the jury trial right doesn't apply in equity or admiralty. The strategy is to figure out if it's in equity or admiralty, and if not, it's in law and the right applies. I think (with small exceptions for the prerogative writs) that that is exactly the right approach, and it avoids a fruitless search for precise historical analogies on the law side, where that search is hardest.
2. The Court refers to claims as being legal in nature. That's precise--it's not just remedies, and it's not at the level of cases or suits. (Although the Court does go on, less precisely, to refer to "whether a suit is legal in nature.")
3. The Court doesn't give a clear invocation of equity's exclusive jurisdiction. It would have been good for the Court to recognize the exclusive jurisdiction expressly, because it is analytically helpful--it marks out a zone where the remedy isn't relevant for Seventh Amendment purposes. E.g., if it's a breach of fiduciary duty claim against a trustee, it is irrelevant what remedy is sought--it's in equity's exclusive jurisdiction. But the Court does note that "some causes of action sound in both law and equity," which is a non-technical way of recognizing the concurrent jurisdiction of equity. So the opinion does seem to rest on the traditional structure.
4. The Court, following Tull, clearly says that remedies that punish are not equitable and necessarily give rise to the jury trial right. That is correct, and Liu v. SEC could have been cited to strengthen the point. The only thing that's a little bit of an off note here is that the Court several times differentiates punishment from restoring the status quo. The status quo is important for preliminary injunctions (more on that in a paper I'm writing now), but it's not really important as a distinguishing characteristic of final equitable remedies. For final remedies, it's more precise to use Doug Laycock's formulation of the plaintiff's "rightful position." A court might move the plaintiff forward to her rightful position (e.g., expectation damages, the equitable remedy of accounting for profits, specific performance, some injunctions) or it might move the plaintiff back to her rightful position (e.g., many but not all claims of legal restitution, most tort damages, the backup compensatory damage measures for breach of contract such as reliance damages and in a narrower form restitution damages, equitable compensation). This possibility of forward or backward movement was recognized by Learned Hand in his student writing (!), and you can read more in the Ames, Chafee, and Re casebook on remedies. Bottom line here: some mischief could come from this if lower courts start associating "remedies that restore you to the status quo" with equity, because it's not a salient concept for final equitable remedies.
5. One of the mysteries I discuss in Equity, Law, and the Seventh Amendment is that the Court has promulgated two contradictory tests for the Seventh Amendment, one in Terry and one in Monterrey, without recognizing the conflict. And the lower courts are confused. (The Monterrey test is clearly the better one.) It's fascinating that the Court in Jarkeshy restates the law of the Seventh Amendment without citing either one of these major Seventh Amendment cases.
6. One last note. Rahimi is the big exploration of history and tradition by the justices (though not the only one this term). It's fascinating to me that not a single opinion in Rahimi cited or discussed the Seventh Amendment, which is a cautionary tale about searching for historical analogues to current practices. Whatever your theory of history, it needs to not be wrecked on the shoals of the Seventh Amendment--so you need to have it be possible to preserve a historical right (the text of the Seventh Amendment requires that, hence every theory does it in some way), while also recognizing how difficult and quixotic the search for exact historical analogues can be. Hence the need for good default rules and presumptions to guide the judicial decisionmaking, such as the rule that if it's not in equity or admiralty, it's in law and the jury trial right applies (back to point 1 above).

Justice Kagan, and for the most part, Justice Sotomayor, seem intent on building bridges to Justice Barrett to help garner her vote. Justice Jackson, on the other hand, takes a different approach.

In Moyle, Justice Jackson accuses Barrett, as well as Chief Justices Roberts and Justice Kavanaugh, of ducking the case because of a "convenient" argument by Idaho.

Some of my colleagues appear to view this convenient rhetorical maneuver as a material change that (also conveniently) reduces the conflict between state and federal law to the point that a ruling from this Court is no longer warranted. See ante, at 6--7 (Barrett, J., concurring). But it is both legally and factually implausible to say that Idaho's current litigating position actually mitigates the conflict between that State's law and EMTALA.

She claims that the Barrett-troika is "shirking its duty."

So it is strange, to say the least, that this Court would shirk its duty to resolve a pressing legal issue on the basis of representations that defy medical realities.

She accuses the middle-three with using an "escape hatch."

Still, some of my colleagues latch onto the bald representations of ldaho's counsel, using them as an escape hatch that justifies our dispensing with having to issue a merits ruling in these cases.

And taking a "mulligan."

We cannot simply wind back the clock to how things were before the Court injected itself into this matter. Our intervention has already distorted this litigation process. We permitted Idaho's law to go into effect by staying the District Court's injunction in the first place, then allowed this matter to sit on our merits docket for five months while we considered the question presented. It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened. As the old adage goes: The Court has made this bed so now it must lie in it-by proceeding to decide the merits of the critical pre-emption issue this case presents.

Justice Jackson is sounding many of the same notes as Justice Alito's dissent. I sense a brooding frustration on the Court with Justice Barrett. Justices Sotomayor and Kagan will take a vote where they can. Their time horizon is much shorter than the other members.

Moreover, Justice Jackson calls out Justice Barrett for at least signaling that Idaho's case may have some merit.

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects. See ante, at 4--7 (Barrett, J., concurring); post, at 4--11 (Alito, J., dissenting). The majority opts, instead, to dismiss these cases. But storm clouds loom ahead. Three Justices suggest, at least in this context, that States have free rein to nullify federal law. See post, at 11-14 (Alito, J., dissenting). And three more decline to disagree with those dissenters on the merits. See ante, at 4--7 (Barrett, J., concurring). The latter group offers only murmurs that "petitioners have raised a difficult and consequential argument" about Congress's authority under the Spending Clause. Ante, at 6 (Barrett, J., concurring). So, as of today, the Court has not adopted Idaho's farfetched theories-but it has not rejected them either.

For good measure, Justice Jackson takes a shot at the Fifth Circuit for "flouting EMTALA."

Instead, the Court puts off the decision. But how long must pregnant patients wait for an answer? Until we confront the pending petition that the Government filed with us after the Fifth Circuit enabled Texas's flouting of EMTALA? Until these very cases return to us in a few years? Will this Court just have a do-over, rehearing and rehashing the same arguments we are considering now, just at a comparatively more convenient point in time? Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable States to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment.

As I noted earlier, the petition from the Fifth Circuit will likely be ready for the long conference. I have to imagine that Jackson, and the three conservatives, will be a lock for cert. Of course, if Trump wins, this case will simply enter limbo.

In Moyle v. United States, Justices Alito, Thomas, and Gorsuch would have maintained the stay. Indeed, they signaled that they would rule for Idaho on the merits. But they were in dissent. And at times, it was a cantankerous dissent. (Justice Gorsuch did not join Part III of the dissent, for reasons he did not explain.)

Justice Alito provides a peek behind the curtain, and suggests the stay was granted in January based on the "likelihood of success on the merits."

Recognizing the flaws in the Government's theory and Idaho's "strong" likelihood of success, this Court stayed the preliminary injunction pending appeal on January 5. And, wisely or not, the Court also took the unusual step of granting certiorari before Idaho's appeal was heard by the Ninth Circuit. See this Court's Rule 11. Now the Court dismisses the writ and, what is worse, vacates the stay.

The Court's order granting the stay offered no rationales. Here, Alito is at least signaling what was important to the three dissenters, but I would suspect this was also what persuaded Justices Kavanaugh and Barrett. After all, Kavanaugh's concurrence in Labrador focused primarily on the likelihood of success on the merits. Moreover, Alito acknowledges that whether or not it was a good idea to grant cert before judgment, it was a mistake to DIG the writ now.

Alito repeats this point later:

Having already taken the extraordinary step of granting certiorari before judgment in order to decide whether the Government's new interpretation of EMTALA is correct, we have no good reason to change course now.

And why did the Court DIG it? The Court "lost the will." Or to be more precise, Justices Kavanaugh and Barrett "lost the will."

Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable.

And why did they lose the will? The suggestion here is because this case is "emotional" and "highly politicized." Alito implies that Justices Barrett and Kavanaugh changed their minds because abortion is an "emotional" topic and the case has become "politicized." I learned long ago not to use the word "emotional" when describing anything a woman does. If Justice Alito used that line with Mrs. Alito, he would certainly need an appeal to heaven. But this barb made it into a draft opinion. (Maybe it will be dropped in the final opinion.)

Alito repeats this claim at the end of his opinion:

Today's decision is puzzling. Having taken the unusual step of granting certiorari before Idaho's appeal could be heard by the Ninth Circuit, the Court decides it does not want to tackle this case after all and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this Court now ducks.

Alito accuses Barrett and Kavanaugh of ducking and hiding for cover.

This isn't the first time the conservatives have used such language. Back in 2021, Justices Thomas, Alito, and Gorsuch wrote that Barrett and Kavanaugh lacked "fortitude." I observed at the time:

In an excessive force case, the conservative trio wrote that the two newest Justices were "unwilling to…bear[] the criticism that" denying the prisoner's appeal "would inevitably elicit." And in a religious liberty case, the Thomas-3 charged that Kavanaugh and Barrett lacked the "fortitude" to overrule a controversial precedent. The conservatives implied a similar fissure in several other cases.

These attacks remind me of Justice Scalia's attacks on Justice O'Connor in Webster v. Reproductive Health Services (1989). They will backfire.

I think the Court's conservatives need some sort of reset or intervention. It will be a long three decades ahead.

I agree with Will Baude's and Jonathan Adler's posts earlier today that Justice Barrett's excellent majority opinion throwing out the plaintiff's case for lack of standing reaches the right outcome. The plaintiff's had to prove an actual injury, not one that was hypothetical or speculative, that the Court could redress by an injunction targeted against the Biden Administration in the future. The fact that the Biden Administration threatened Facebook with an antitrust suit to force it to delete, among others, Robert F. Kennedy's posts about vaccine skepticism, during Covid, does not mean that the Biden Administration will behave this way in the future. We simply do not know, today, if there will be either a Covid-like event or a Biden Administration, in the future, i.e. after January 20, 2025. Justice Scalia would have joined Justice Barrett's opinion if he was alive and on the Supreme Court today.

At the same time, Justice Alito's excellent dissent usefully summarizes a sustained campaign of brutal and vicious threats made by the Biden Administration against Facebook during Covid from 2021 to 2022. Biden threatened to breakup Facebook with an antitrust suit if it did not greatly censor vaccine skeptic speech. Facebook meekly complied because they had bigger fish to fry. This was a clear violation of the First Amendment by the Biden Administration. It was a gross misuse of presidential power that, at the time, was a High Crime or Misdemeanor. The plaintiffs in this case might have standing to sue the various government officials mentioned in their complaints for money damages, but they do not have standing to sue for a prospective injunction.

The remedy for the future behavior of Joe Biden is in the hands of American voters to be decided on November 5th of this year. It is not the Supreme Court's job to conduct a general prospective oversight of the executive branch.

Justice Kagan's concurrence in Moyle, joined by Justice Sotomayor, made the same factual claim several times--that Idaho's law would affect the fertility of women. (And no, Kagan did not use Justice Jackson's neologism of "pregnant patient"--a question she still must be wrestling with since her confirmation hearing.) Kagan wrote:

An Idaho law prohibits abortions unless necessary to prevent a pregnant woman's death; the law makes no exception for abortions necessary to prevent grave harms to the woman's health, like the loss of her fertility.

What falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility.

And the record shows that, as a matter of medical reality, such cases exist. For example, when a woman comes to an emergency room with PPROM, the serious risk she faces may not be of death but of damage to her uterus, preventing her from having children in the future.

Termination of the pregnancy (which is often of a non-viable fetus) may be the only way to prevent a woman's death or serious injury, including kidney failure or loss of fertility.

Why would Justice Kagan go out of her way four times to focus on fertility? That is usually not what pro-abortion advocates write about. They usually focus on autonomy and equality. No. This message is directed right at the Supreme Court Justice with the most children--Justice Barrett. Remember, in Dobbs, Justice Barrett was taken by the fact that adoptions have become easier. In an abortion case, the way to Justice Barrett's vote is by focusing on the ability of women to maintain their fertility and have more children. Accordingly, SG Prelogar mentioned fertility twice during argument.

In Idaho, doctors have to shut their eyes to everything except death, whereas, under EMTALA, you're supposed to be thinking about things like, is she about to lose her fertility?

It's looking at the possibility that if the woman doesn't get treatment then and there, what will happen, what will reasonably be expected to occur is that her organs could start shutting down or she might lose her fertility or have other serious health consequences.

I have become convinced that every move Elena Kagan makes is seen to bring Amy Coney Barrett to her side. Kagan, a former law school dean, knows how to talk to an academic. Meanwhile, the Court's conservatives have shown no ability, or even interest, to bringing around Barrett. The drift is visible. Laurence Tribe's description of Kagan more than a decade ago is still apt--she had purchase with Justice Kennedy, and now has purchase with Justice Barrett.

I also found it strange that Justice Kagan used an acronym, PPROM, without defining it. (Maybe this is something that would have been cleared up in a subsequent draft.) PPROM, or preterm premature rupture of the membranes, occurs when a woman's water breaks prior to the onset of labor.

This exact issue came up at oral arguments, and seems to have pushed Justice Barrett off her prior position. The colloquy begins at page 24. Justice Sotomayor asked the Idaho SG about women who were diagnosed with PPROM during the second trimester. Sotomayor inquired if, under the Idaho law, a doctor could perform an abortion in this case. The lawyer would not give a yes-or-no answer, and responded, "It is very case by case." At that point, Justice Barrett entered the fray:

JUSTICE BARRETT: Counsel, I'm kind of shocked actually because I thought your own expert had said below that these kinds of cases were covered.

MR. TURNER: Yeah.

JUSTICE BARRETT: And you're now saying they're not?

MR. TURNER: No, I'm not saying that. That's just my point, Your Honor, is that -

JUSTICE BARRETT: Well, you're hedging. I mean, Justice Sotomayor is asking you would this be covered or not, and it was my understanding that the legislature's witnesses said that these would be covered.

In hindsight, that may have been the moment that Idaho lost the case.

I think Justices Sotomayor and Kagan see these dynamics of what makes Justice Barrett tick, and they executed their plan flawlessly. Justice Jackson, as I'll explain in another post, has a different focus.

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.

There is a classic joke, best told in a Yiddish accent (think Jacky Mason). A mohel puts a clock in his storefront. A customer walks in to have his watch fixed, but the mohel says, "I don't fix watches." The customer asks, "why do you have a clock in your window?" The mohel responds, "If you were a mohel, what would you put in your window?"

I had much the same reaction reading the Supreme Court's leaked opinion in Moyle v. United States. The Supreme Court could not actually muster an opinion on the EMTALA question, so they left us with window dressing: a DIG and a punt.

Last bris joke, I promise.

I've now had a chance to read the draft opinion in Moyle v. United States. The document is labeled 1.0, and is dated May 23, 2024. A lot can change over a month. But, like with the Dobbs leak two years ago, it is safe to presume that not many changes will be made. Here are my tentative thoughts.

First, Moyle was argued on April 24. That would suggest it took the Court about a month to put together a DIG and several separate writings. This timing suggests that the Court does indeed hold big cases till the end of the term, and does not always release them right away. It has happened that certain DIGs are held to the last day of the term. But why? Other DIGs are issued shortly after a case is argued.

Second, whatever security precautions were put in place after Dobbs failed. Bloomberg has not indicated how long the document was online for, but it was there long enough for it to be downloaded. Bloomberg likely was not the only one to see it. Moreover, the document posted was not final. It still had the version number (1.0) and date (5/23/24) on it. Somehow, someone in the Supreme Court managed to inadvertently post a draft opinion that was not complete. This was not like someone pushing the wrong button. Several steps in the process were bypassed. Will the Chief Justice assign the Marshal to investigate? I will withhold any calls for Roberts's resignation until more facts are developed.

Third, the effect of the dismissal may be temporary. Currently pending before the Court is the SG's cert petition on a similar case from Texas. The brief in opposition to cert is due on July 22. This case will almost certainly be distributed for the long conference. I have to imagine there are four votes for cert, but not the four you might expect. Justices Alito, Thomas, and Gorsuch want to resolve this case yesterday. And Justice Jackson lambasted her progressive colleagues for DIGing it. So we should get a grant in October, with oral argument in December or January. But therein lies a dilemma. If Trump wins, he will almost certainly rescind the Biden-era "guidance" document. And the Court can then DIG that petition, like the Grimm case. How's that for Roberts bipartisanship--DIG two petitions on the same issue from two administrations. And that shift will trigger a new round of litigation that Trump's rescission is not valid because {insert reasons}. Idaho is in the Ninth Circuit, so you know how that will go. As a result the Court will never actually decide the statutory issue. Justice Jackson is angry, with good reason! Her time horizon is much longer than that of Justices Sotomayor and Kagan. I see this decision as a similar punt to the cert grant of the SG's petition in Skrmetti. If Trump wins, the Roberts Court can, once again, avoid a contentious issue.

Fourth, Justice Kavanaugh's concurrence in Labrador v. Poe is looking quite stale. In that opinion, which I praised, Kavanaugh extolled the virtue of granting cert before judgment as a way to handle the shadow docket. But here, Justice Barrett regrets the decision to grant cert before judgment, and lays down what I think will be guidance to not grant it in the future. She focuses on irreparable harm, and indeed is quite stingy in defining it. I know I beat up on Justice Kavanaugh quite a bit, but I do feel bad for him. Just when he thought he had things figured out, Justice Barrett pulls the rug from underneath him.

I will have much more to say about the substance of the opinion in another post. And, to close with a mohel joke, never take a front row seat a bris.