The Volokh Conspiracy

Yesterday the Court stayed most of the district court's injunction in Labrador v. Poe, narrowing the injunction so that it protected only the plaintiffs from the enforcement of Idaho's statute restricting surgeries and other kinds of medical interventions for minors related to gender identity. Accompanying the Court's stay were three opinions about universal injunctions. Labrador v. Poe is an important development and it starts to clarify the Court's direction.

Note that in this post I will refer to "universal injunctions," meaning injunctions that prohibit the government's application of a law or regulation to anyone, not just to the parties and those represented by parties. In other words, the category "universal injunctions" includes national injunctions and also their state equivalents (i.e., it includes nationwide and statewide injunctions), but it excludes the distinct question of vacatur as a remedy under the Administrative Procedure Act. Using the term "universal injunctions" is helpful because it is what is squarely at issue between the justices in Labrador v. Poe: the case is about an injunction prohibiting enforcement of a state law against anyone, and the justices discuss the power to do this as a matter of equitable principles, leaving to one side the question of whether those principles are altered by the APA.

Here is where the justices fell:

• Three justices (Gorsuch, joined by Thomas and Alito) concurred in the stay that narrowed the injunction to be plaintiff-protective, and their opinion offered a clear rejection of universal injunctions.
• Two justices (Kavanaugh, joined by Barrett) concurred in the stay, and spoke primarily to how the Court should think about stays of lower-court injunctions. This opinion did not fully answer the question of universal injunctions, but it expressed skepticism ("As I see it . . ."; "In short, a rule limiting . . ."; and especially footnote four).
• The Chief Justice did not indicate how he voted, so if he concurred in the stay the vote was 6-3, and if not it was 5-4. It is more likely given the Court's practices for unidentified votes that he concurred in the stay, but either is possible.
• One justice (Kagan) dissented from the stay without opinion. That does not indicate a position on the universal injunction question, since it is consistent with a number of different possibilities, including (1) a view that universal injunctions are not permissible but Idaho failed for substantive or procedural reasons to make a compelling case for a stay; or (2) a view that universal injunctions are permissible, and there was on these facts no reason to think that the grant of a universal injunction was an abuse of discretion.
• Two justices (Jackson, joined by Sotomayor) dissented from the stay. They emphasized debate on the history of universal injunctions, and that the questions raised by these injunctions "are contested and difficult."  Their disagreement with the majority was about how stringent the standard should be for stays of lower-court injunctions, how deferential the Court should be, and whether the injunction in this case actually was a universal injunction at all (as opposed to one that was no broader than necessary to protect the plaintiffs).

Brief observations:

1.  This is the first time we have had a case where most of the justices (seven) have joined opinions that say something, however exploratory, about universal injunctions.
2. There is a striking asymmetry in the positions of those seven: three against universal injunctions, two skeptical of them, and two calling the question undecided and difficult. No one offered a first-principles defense of what has become the status quo in lower courts only since the last part of President Obama's second term.
3. In terms of arguments, the opinions were careful, and I was especially impressed at the absence of two straw men. First, it's sometimes said that without universal injunctions there would have to be individual suits for every affected person--but that ignores the role of precedent, and both the Gorsuch and Kavanaugh concurrences recognized precedent's role for how a judicial decision reaches out to non-parties. Second, it's sometimes said that the position against universal injunctions requires one to think that an injunction cannot have any incidental benefit for non-parties. That isn't so. An injunction that requires A to clean up a nuisance afflicting neighbor B might also have good benefits for neighbor C. And Justice Jackson made exactly that point (footnote 3).
4. In terms of revealed preferences, what is new in Labrador v. Poe is several-fold. Justice Alito joined Justice Gorsuch and Justice Thomas in opposing universal injunctions, I think for the first time. And it was I believe Justice Jackson's first opinion about universal injunctions since joining the Supreme Court: it offers a measured assessment of the debate and not only criticizes the concurring justices (it is a dissent), but also calls for restraint among the lower-court federal judges who are giving universal injunctions (the paragraph with "I see some common ground"). Justice Kavanaugh's opinion reflected his consistent skepticism on injunctions against state laws that run beyond protecting the plaintiff, as well as his inclination to distinguish the injunction question from the APA question--both themes previously appeared in his statement respecting the denial of the application for a stay in Griffin v. HM Florida-ORL, LLC.
5. It makes sense to think about the injunction question separately and first, since the APA question adds additional layers and complexities to the core issue of equitable power in the absence of a statute. That is exactly what the Court is doing.
6. It's interesting that the question was about an injunction against a state law. There have been important opinions by Judge Stras (in dissent) and Chief Judge Sutton that have extended the critiques of national injunctions to their state counterparts. The opinions of the justices in Labrador v. Poe are a measure of vindication.
7. There are plenty of other important strands in all of these opinions, including thoughtful contributions on when stays from the Supreme Court are appropriate and the impossibility of entirely avoiding the merits, on the emergency docket, and on forum-shopping (as Justice Gorsuch correctly says, "In universal-injunction practice, . . . [j]ust do a little forum shopping for a willing judge and, at the outset of the case, you can win a decree barring the enforcement of a duly enacted law against anyone.").

I'll close by quoting the incisive final paragraph of Justice Gorsuch's concurrence:

Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us. But it will lead federal courts to become a little truer to the historic limits of their office; promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand; allow for the gradual accretion of thoughtful precedent at the circuit level; and reduce the pressure on governments to seek interlocutory relief in this Court. A return to a more piecemeal and deliberative judicial process may strike some as inefficient. It may promise less power for the judge and less drama and excitement for the parties and public. But if any of that makes today's decision wrong, it makes it wrong in the best possible ways, for "good judicial decisions are usually tempered by older virtues." DHS, 589 U. S., at ___ (slip op., at 4).

After Justice Scalia's passing, the best writers on the Court are Chief Justice Roberts and Justice Kagan. Roberts is at his best in a non-ideological case where he has no need to keep votes or reach some contrived outcome. (Roberts's discussion of Wonder Bread today in the 9-0 Bisonnette case was delightful). Kagan is at her best when she goes full-on snark mode in dissent. She spares no one. After the two-way tie between Roberts and Kagan, I think Justice Barrett has climbed to third place. I always find her writing to be delightful, insightful, and clean. Plus she has the virtue of writing the quickest. I haven't run the numbers, but it seems that her opinions consistently come out shortly after oral argument, which means she circulates quickly and there are few revisions to be made.

Justice Barrett's opinion today in Sheetz v. El Dorado County was golden. I especially appreciated this tight summary of the Court's takings clause jurisprudence:

The Takings Clause's right to just compensation coexists with the States' police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co., 272 U. S. 365 (1926), the right to compensation is triggered if they "physically appropriat[e]" property or otherwise interfere with the owner's right to exclude others from it, Cedar Point Nursery v. Hassid, 594 U. S. 139, 149–152 (2021).That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). Different rules apply to State laws that merely restrict how land is used. A use restriction that is "reasonably necessary to the effectuation of a substantial government purpose" is not a taking unless it saps too much of the property's value or frustrates the owner's investment-backed expectations. Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123, 127 (1978); see also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1016 (1992) ("[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land" (internal quotation marks omitted)).

I do wonder what Justice Barrett thinks about her soulmate and her inlaws. And, as is often the case, with the soulmate comes the inlaws. Like love and marriage, you can't have one without the other. Though Justice Scalia's nearest hippies would beg to differ.

Justice Barrett also uses another hypothetical that likely comes from real-world experience--sort of like the babysitter-theme park hypo:

The government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development. See R. Epstein, Bargaining With the State 188 (1993). The bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its land-use interests. Imagine that a local planning commission denies the owner of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard (in propertyspeak, granting it a limited-access easement). The landowner is "likely to accede to the government's demand, no matter how unreasonable," so long as she values the building permit more. Koontz, 570 U. S., at 605. So too if the commission gives the landowner the option of bankrolling the party at a local pub instead of hosting it on her land. See id., at 612–615. Because such conditions lack a sufficient connection to a legitimate land-use interest, they amount to "an out-and-out plan of extortion." Nollan, 483 U. S., at 837 (internal quotation marks omitted). Our decisions in Nollan and Dolan address this potentialabuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine.

The Court's decision was unanimous: the Nollan/Dolan test applies if the condition is imposed by legislation. The Court found that "Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules." The rest of the majority opinion is a breezy summary of how the Takings Clause has operated for centuries. Students learning about the Takings Clause can skim this analysis for a quick overview.

There are three separate writings. Justice Sotomayor, joined by Justice Jackson, stressed that the Court did not resolve "whether the permit condition would be a compensable taking if imposed outside the permitting context." In other words, the Court left open whether the Nollan/Dolan test should apply to fees imposed on a "class of properties" in the same fashion that it applies to a "particular development." Justice Gorsuch, in a separate concurrence, stated there is no difference, and both types of regulations should be compensable.

Justice Kavanaugh, joined by Justice Kagan, does what he alway does: reaches out to address issues that are not present in the case. Specifically, as Justice Kavanaugh often does, he explains that which has been done before can continue to be done:

Importantly, therefore, today's decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property. Moreover, as is apparent from the fact that today's decision expressly leaves the question open, no prior decision of this Court has addressed or prohibited that longstanding government practice. Both Nollan and Dolan considered permit conditions tailored to specific parcels of property. See Dolan v. City of Tigard, 512 U. S. 374, 379–381, 393 (1994); Nollan v. California Coastal Comm'n, 483 U. S. 825, 828– 829 (1987). Those decisions had no occasion to address permit conditions, such as impact fees, that are imposed on permit applicants based on reasonable formulas or schedules that assess the impact of classes of development.

I am often struck by how often Justice Kavanaugh repeats himself. He will often ask the same question, nearly verbatim, during oral argument. And they're not really questions. They are statements which indicate how he will vote, and he simply asks the lawyers if they agree with him. Or, if a lawyer says something unexpected, Kavanaugh tries to make sure they are still on the same page.

Likewise, Justice Kavanaugh's opinions are remarkably repetitive. In a one paragraph concurrence, he manages to repeat the two key phrases verbatim: "permit conditions, such as impact fees" and "reasonable formulas or schedules that assess the impact of classes of development." Without saying so, Kavanuagh signaled that these "common government practices" are fine. I imagine these sorts of land use issue would come before the Chevy Chase Town Council or the Montgomery Country Zoning and Code Compliance Division.

Going forward, every single lower-court judge will now cite Kavanaugh in any case about "impact fees" and determine whether the formal or schedule are "reasonable." Justice Kavanaugh, without saying so, has reached out to decide a huge issue that was not present here. He truly cannot resist doing this.