The Volokh Conspiracy

There is much to say about Moore v. Harper. I'll start with the threshold issue: was there still a live controversy that the Court could decide? The majority opinion by Chief Justice Roberts answered the question yes; the dissent by Justice Thomas answered the question no. I won't even attempt to describe the tortured legal posture of this case. The Chief Justice somehow made the complicated litigation history straightforward. I think he cut a few corners here and there in the service of simplicity, but he illustrated once again why he is still, pound for pound, the best writer on the Court.

Here, I want to focus on one particular aspect of the mootness inquiry. The Court held that it could vacate the "judgment" from Harper I. Ultimately, the Court did not vacate that judgment, but it could have. Therefore, because the possibility of vacatur existed, the controversy was not moot. But what would have been the effect of vacating the judgment from Harper I? Chief Justice Roberts writes that if the Court vacated the judgment from Harper I, "the 2021 plans enacted by the legislative defendants would again take effect." Roberts further quoted from counsel for the legislative defendants that the North Carolina Supreme Court "overruling Harper I [would] not negate the force of its order striking down the 2021 plans." In these two sentences, Chief Justice Roberts succumbed to the writ of erasure fallacy.

A judgment does not operate against a statute; a judgment operates against parties.  Justice Thomas spelled out the "deeper" problems with the Court's analysis.

But the error that actually drives the majority's conclusion is much deeper. The majority evidently thinks that when Harper I held the 2021 Act unconstitutional, it entered a "judgment" affecting the 2021 Act as a statute, independent of its application to the legal rights of the litigants in this case. And the majority thinks that to reverse Harper I 's "judgment" would "negate the force of its order striking down" the Act, thus "alter[ing] the presently operative statutes of North Carolina." But, of course, the judicial power does not "operate on legal rules in the abstract"; it operates on the rights and liabilities of contending parties with adverse legal interests. California v. Texas (2021). The majority's reasoning cannot be squared with the judicial power vested by the Constitution, the case-or-controversy requirement, or the nature of judicial review.

Yes, California v. Texas. I remember that case well. The Supreme Court could not issue any order that ran against the Affordable Care Act. The judgment could only run against plaintiff's who have injuries that can be remedied.

Justice Thomas illustrates the profound problems with the majority's analysis:

Instead, its animating idea (uncritically borrowed from petitioners) is that Harper I 's "judgment" operated against the 2021 Act as a statute. The majority describes Harper I's "judgment" interchangeably as "enjoining the use of the 2021 ma[p]" and "striking down the 2021 pla[n]." It then reasons that reversing that "judgment" would "negate the force of its order striking down the 2021 pla[n]," thus "alter[ing] the presently operative statutes of North Carolina" such that the 2021 Act would "again take effect." . . .

This reasoning bears no connection to the judicial power of this Court or the court below. . . . Thus, a judgment binds the rights of the parties in that case, see Taylor, and it awards remedies that "operate with respect to [those] specific parties," California. In deciding any case, the court must "ascertai[n] and declar[e] the law applicable to the controversy"; this duty, in turn, implies "the negative power to disregard an unconstitutional enactment" in deciding the case. Massachusetts v. Mellon (1923); accord, Nicholson; Marbury v. Madison (1803). But this negative power of judicial review is not a "power per se to review and annul acts of [legislation] on the ground that they are unconstitutional," Mellon; "to change or to repeal statutes," or to issue orders that "operate on legal rules in the abstract," California. Courts of law simply do not render "judgments" that toggle statutes from "operative" to "inoperative" and back again, as if judicial review were some sort of in rem jurisdiction over legislative Acts.

Roberts has no response to Justice Thomas on this foundational point. If Justice Thomas is right, then the case was moot, and should have been dismissed.

I am disappointed that Justice Barrett joined this analysis. The Chief will do jurisdictional pirouettes like Baryshnikov to reach the result he wants. But Justice Barrett knows better.

Sen. Schumer (D-NY) has announced an ambitious plan to produce a bipartisan AI regulation program in a matter of months. Jordan Schneider admires the project; I'm more skeptical. The rest of our commentators, Chessie Lockhart and Michael Ellis, also weigh in on AI issues. Chessie lays out the case against panicking over existential AI threats, this week canvassed in the MIT Technology Review. I suggest that anyone complaining that the EU or China is getting ahead of the US in AI regulation (lookin' at you, Sen Warner!) doesn't quite understand the race we're running. Jordan explains the difficulty the US faces in trying to keep China from surprising us in AI.

Michael catches us up on Canada's ill-advised effort to force Google and Meta to pay Canadian media whenever a user links to a Canadian story.  Meta has already said it would rather ban such links. The end result could be that even more Canadian news gets filtered through American media, hardly a popular outcome north of the border.

Speaking of ill-advised regulatory initiatives, Michael and I comment on Australia's threatening Twitter with a fine for allowing too much hate speech on the platform post-Elon.

Chessie gives an overview of the DELETE Act, a relatively  modest bipartisan effort to regulate data brokers' control of personal data.

Michael and I talk about the growing tension between EU member states with real national security responsibilities and the Brussels establishment, which has enjoyed a 70-year holiday from national security history and expects the next 70 to be more of the same. The latest conflict is over how much leeway to give member States when they feel the need to plant spyware on journalists' phones.  Remarkably, both sides think government should have such leeway; the fight is over how much.

Michael and I are surprised that the BBC feels obliged to ask, "Why is it so rare to hear about Western cyber-attacks?" Because, BBC, the agencies carrying out those attacks are on our side and mostly respect rules we support.

In updates and quick hits:

• I bring listeners up to date on how things turned out for the lawyers who filed a ChatGPT-hallucinated brief in federal court: Not well.
• Chessie flags the creation of a new Justice Department section in the National Security Division: Natsec Cyber
• Chessie also welcomes the growing recognition, some of it in cold, hard cash, for cyber security clinics.

Download Episode 464 (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

I have finished editing Moore v. Harper for the Barnett/Blackman supplement. I trimmed 65 pages down to 22 pages. You can download the opinion here.

This case will be useful for two separate topics: jurisdiction/mootness and election law. I suspect professors interested in the former will be less interested in the latter, and vice versa. To make things easier, the discussion on mootness appears in Part II of the majority opinion and Part I of the dissent. And the discussion of election law appears in Parts III and IV of the majority opinion and Part II of the dissent.

I'll have much more to say about this decision in future writings.

From Basulto v. Netflix, Inc., decided Saturday by Magistrate Judge Jonathan Goodman (S.D. Fla.):

"Give him an inch and he'll take a mile"

— Well-known proverb

The hugely-popular children's book If You Give a Mouse a Cookie involves a boy who gives a mouse a cookie. The mouse then asks for milk, and a series of requests begins. The mouse makes request after request, and the boy grants all the mouse's wishes: a glass of milk, a straw (to drink the milk), a mirror (to avoid a milk moustache), nail scissors (to trim his hair in the mirror), a broom (to sweep up the hair trimmings), a nap, a story (to be read to him), a picture (to be drawn), a refrigerator (to hang the picture on)—and then a glass of milk (because looking at the refrigerator made the mouse thirsty).

One theme of the story is that every event has consequences. There is always a cause and an effect. Every action causes a reaction. Decisions about litigation tactics are no exception to this fundamental rule. Another theme is that the recipient of a favor or benefit may well seek additional rewards. The lessons children learn from If You Give a Mouse a Cookie apply equally to tactics used in lawsuits.

All of which brings us to Defendant Netflix's Expedited Motion to Strike Plaintiffs' Amended Opposition to Netflix's Motion for Summary Judgment…. Essentially, Netflix contends that Plaintiffs have taken advantage of a recent discovery ruling (which permitted an additional two hours of deposition testimony on limited topics from a Netflix corporate representative) to unfairly submit materially revised materials: the amended opposition brief, statement of undisputed facts, new declarations from Dreyfuss and Basulto and related exhibits. According to Netflix, Plaintiffs abused their ability to submit a revised memorandum to the limited extent it concerned the new and additional deposition testimony by fundamentally re-conceiving their arguments.

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Justice Kavanaugh's decision in United States v. Texas does not cohere on many levels. Worse, the decision can only be understood as some sort of middling compromise to avoid revisiting Massachusetts v. EPA and national vacaturs under Section 706. (Jon Adler and Mike Dorf have more on these issues). Is U.S. v. Texas a ticket good for one ride, and one ride only? Part II-C of the majority opinion identifies five areas where the courts may "entertain cases involving the Executive Branch's alleged failure to make more arrests or bring more prosecutions." The third point may have some relevance for the never-ending DACA litigation.

Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency "has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities." Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler-style"abdication" argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario.

This argument brings me back. For more than a decade, advocates have contended that DACA amounts to a wholesale abandonment of the immigration laws with respect to the Dreamers. Does DACA "exceed the bounds of enforcement discretion"? Usually, Heckler is understood as a merits question, rather than a standing question. But now, Justice Kavanaugh has seemed to merge, or at least conflate the inquiries. Justice Barrett pointed out this problem in her concurrence:

Whatever Heckler's relevance to cases like this one, it does not establish a principle of Article III standing. And elevating it to the status of a constitutional rule would transform it from a case about statutory provisions (that Congress is free to amend) to one about a constitutional principle (that lies beyond Congress's domain). Although the Court notes that Heckler involved the APA, its conflation of Heckler with standing doctrine is likely to cause confusion.

Yes, Justice Kavanaugh's opinion will cause confusion. I think that's a feature, rather than a bug. Moreover, the Court provides no explanation of what "abandonment" even means. Justice Alito points out the obvious:

Under what circumstances might the Court say that the Federal Government has "wholly abandoned" its enforcement duties? Suppose the Federal Government announced that it would obey 80% of the immigration laws or 70% of the environmental laws. Would the Court say that it had"

Still, Justice Kavanaugh expressly left open the question of whether there is standing to challenge the executive "disregarding" statutory obligations. Justice Kavanaugh repeated himself, so you know he really means it!

To be clear, our Article III decision today should in no way be read to suggest or imply that the Executive possesses some freestanding or general constitutional authority to disregard statutes requiring or prohibiting executive action.

And is it even true that the states failed to raise this issue? Justice Gorsuch says no.

But the Court declines to say more than that because "the States have not advanced" such an argument. Ibid. Is that true, though? The States have pleaded a claim under the Take Care Clause. App. 106. Is that not an abdication argument? Did they fail to plead it properly? Or is the Court simply ignoring it?

Regrettably, the lower courts will toil to make sense of Justice Kavanaugh's "abandonment" argument--and to what end?

Justice Kavanaugh's majority opinion raised a fourth point that may be relevant for the DACA case.

The fourth point may also have some relevance to the DACA litigation:

Fourth, a challenge to an Executive Branch policy that involves both the Executive Branch's arrest or prosecution priorities and the Executive Branch's provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive's traditional enforcement discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal. (2020) (benefits such as work authorization and Medicare eligibility accompanied by non-enforcement meant that the policy was "more than simply a non-enforcement policy"); Texas v. United States (Linda R. S. "concerned only nonprosecution," which is distinct from "both nonprosecution and the conferral of benefits"), aff'd by an equally divided Court (2016). Again, we need not resolve the Article III consequences of such a policy.

Here, Justice Kavanaugh is obviously referring to DACA. But what is perplexing is the conjunction "and." DACA does not involve an "arrest or prosecution priorities." Yesterday, I pointed out that immigration law is civil. To be precise, there is no arrest and prosecution; there is detention and removal. Sure, some aliens are charged with the crime of illegal re-entry. But for the most part, immigration enforcement is civil. DACA does provide legal benefits. Indeed, the existence of those benefits provided the basis for the Chief's "reliance interest" analysis in DHS v. Regents. (Isn't it something that New York and California won their big cases against Trump while but Texas keeps losing against Biden?)

What exactly does this fourth point mean? Justice Alito writes in dissent:

Exactly what this means is not easy to ascertain. One possibility is that the majority is talking about a complaint that asserts separate claims based on the grant or denial of benefits, the grant or denial of legal status, and harms resulting from non-enforcement of a statutory mandate. In that event, standing with respect to each claim would have to be analyzed separately.

This is how I read the Kavanaugh opinion, which would leave open the question of whether there is standing to challenge DACA. But Alito flags another possible reading:

Another possibility is that the majority is referring to a claim asserting that non-enforcement of a statutory requirement requiring the arrest or prosecution of third parties resulted in the plaintiff's loss of benefits or legal status. Such a situation is not easy to imagine, and the majority cites no case that falls within this category. But if such a case were to arise, there is no reason why it should not be analyzed under our standard three-pronged test.

I find this reading unlikely--the Court described a non-existent program. But I suppose Justice Kavanaugh can duck-and-cover when the DACA cases arrives.

Finally, Footnote 3 of the majority opinion tries to draw a distinction between "direct" and "indirect" effects on state spending.

But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State's claim for standing can become more attenuated.

The theory for standing in the DACA case, and much strategic litigation, has always concerned state spending: the failure to enforce immigration law foists more costs on state coffers. The Court doesn't explain the line between direct and indirect effects. Indeed, this line harkens back to the Pre-New-Deal era of Commerce Clause jurisprudence, where the Court would approve of direct regulations of commerce, but not indirect regulations.

What makes this argument particularly infuriating is that the census case expressly relied on an indirect effect. Justice Gorsuch makes this point in his concurrence:

Indeed, this Court has allowed other States to challenge other Executive Branch policies that indirectly caused them monetary harms. See, e.g., Department of Commerce v. New York (2019). So why are these States now forbidden from doing the same?

As does Justice Alito in dissent:

Instead, it observes only that a "State's claim for standing can become more attenuated" when based on the "indirect effects" of federal policies "on state revenues or state spending." Ante, at 9, n. 3. But while it is certainly true that indirect injuries may be harder to prove, an indirect financial injury that is proved at trial supports standing. And that is what happened here.

Ultimately, I think the effect of this decision is quite limited. It will probably be a ticket good for one ride.

Flash back to the October 2006 Term. It was the first full term for Chief Justice Roberts and Justice Alito. That term, Chief Justice Roberts wrote "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And at that point, I think he actually meant it! (Stay tuned for this week). One of Roberts's most vigorous dissents that term came in Massachusetts v. EPA. That 5-4 decision held that Massachusetts had standing to challenge the Bush administration's failures to regulate greenhouse gas emissions. The decision was heralded by environmental scholars, but it always stuck out like a sore thumb among standing nerds. What exactly was the basis for the "special solicitude" of state standing? (Is that anything like the "equal sovereignty" in Shelby County?)

Jump forward sixteen years. Now, states routinely take the federal government to court over virtually every policy. Red states sued the Obama and now Biden administrations. Blue states sued the Trump administration. And along the way, Massachusetts v. EPA was a helpful precedent for red and blue states alike. But is it still good law? After United States v. Texas, the answer may not be so clear.

Let's start with Justice Kavanaugh's majority opinion. He cited Massachusetts v. EPA only once in a footnote. And Justice Kavanaugh presented the case in very negative terms:

As part of their argument for standing, the States also point to Massachusetts v. EPA, 549 U. S. 497 (2007). Putting aside any disagreements that some may have with Massachusetts v. EPA, that decision does not control this case. The issue there involved a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge to an exercise of the Executive's enforcement discretion.

Other than Chief Justice Roberts, has any member of the majority expressed any "disagreement" with Massachusetts v. EPA? Put that precedent on life support. Or is it already dead? Justice Gorsuch suggests that the lower courts should cast the case aside:

Next, the Court contends that, "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property." Ante, at 6. Here again, in principle, I agree. But if an exercise of coercive power matters so much to the Article III standing inquiry, how to explain decisions like Massachusetts v. EPA? There the Court held that Massachusetts had standing to challenge the federal government's decision not to regulate greenhouse gas emissions from new motor vehicles. And what could be less coercive than a decision not to regulate? In Massachusetts v. EPA, the Court chose to overlook this difficulty in part because it thought the State's claim of standing deserved "special solicitude." I have doubts about that move. Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules "ha[d] no basis in our jurisprudence." Id., at 536 (ROBERTS, C. J., dissenting). Nor has "special solicitude" played a meaningful role in this Court's decisions in the years since. Even so, it's hard not to wonder why the Court says nothing about "special solicitude" in this case. And it's hard not to think, too, that lower courts should just leave that idea on the shelf in future ones.

I've seen this move before. In American Legion, Justice Gorsuch suggested that the Court had already abandoned the Lemon test. Then in Kennedy v. Bremerton, Justice Gorsuch instructed the lower courts to no longer follow the Lemon test.

Justice Alito, in dissent, evokes Justice Scalia's imagery of the Lemon test emerging from the grave like "some ghoul in a late night horror movie."

So rather than answering questions about this case, the majority's footnote on Massachusetts raises more questions about Massachusetts itself—most importantly, has this monumental decision been quietly interred? Cf. ante, at 3 (GORSUCH, J., concurring in judgment).

Then again, Justice Alito seems peeved that blue states can rely on "special solicitude" but not read states:

Our law on standing should not deprive the State of even that modest protection. We should not treat Texas less favorably than Massachusetts. And even if we do not view Texas's standing argument with any "special solicitude," we should at least refrain from treating it with special hostility by failing to apply our standard test for Article III standing.

Maybe "special solicitude" is already dead. I suppose Texas is a warning that lower courts cite Massachusetts v. EPA at their own peril, as some future case may deem the precedent "abandoned."

Last week, Justice Kavanaugh wrote four opinions of exceedingly short length. Arizona v. Navajo Nations was thirteen pages, Pugin v. Garland was ten pages,  Coinbase, Inc. v. Bielski was ten pages, and United States v. Texas was fourteen pages. I am generally a fan of short opinions. Brevity is the soul of wit, after all. But Justice Kavanaugh's opinions are not short and witty. Rather, he consistently presents a very narrow conception of the facts, and then quietly modifies precedent to fit those sterilized facts. I've already written about Kavanaugh's anemic opinion in Navajo Nations. I don't have time to write about Pugin and Coinbase, but you should skim the dissents, which I found more persuasive than I expected. (Just CTRL-F the word "majority"). Here, I will discuss Justice Kavanaugh's majority opinion in United States v. Texas--in particular, what he included and what he excluded.

The majority opinion turns almost entirely on Linda R.S. v. Richard D. (1973). The facts of that case are unusual. At the time, Texas law apparently obligated prosecutors to bring charges against married fathers who did not pay child support. But the law did not require prosecutors to bring charges against unmarried fathers who failed to pay child support. The mother of an illegitimate child filed a suit that would have compelled prosecutors to charge these deadbeat dads. You'll be forgiven if you missed Linda R.S. The Solicitor General's brief devoted about two paragraphs to the case, and Texas's brief devoted about two sentences to the Marshall decision. But that decision included a very useful sentence: "A citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." And, as Justice Kavanaugh sees it, that is exactly the relief Texas sought: "The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests." Therefore, the Court held, the plaintiffs do not assert a judicially cognizable injury-in-fact.

Justice Barrett's concurrence demonstrates that Justice Kavanaugh misread Linda R.S. That case concerned what Lujan described as the redressability prong. The Court indeed found that the plaintiff had suffered an injury, but concluded that the Court could not issue a remedy that would redress the injury. Specifically, ordering the prosecutor to bring charges against the deadbeat dad would not necessarily compel him to pay child support. (Indeed, an incarcerated father seems less likely to pay child support.) The relationship between injury and redressability often blurs together--the ability for the court to order some remedy that redresses an injury often turns on what the asserted injury is. But it is possible to have an injury, even if the court cannot issue an order that would redress that injury. I noted earlier that Justices Gorsuch, Thomas, and Barrett concluded that a statute prohibited the issuance of an injunction in this case--thus the states suffered an injury that the courts could not redress.

In her Texas concurrence, Justice Barrett wrote:

We agreed [in Linda R.S.] that the plaintiff "suffered an injury stemming from the failure of her child's father to contribute support payments." But if the plaintiff "were granted the requested relief, it would result only in the jailing of the child's father." Needless to say, the prospect that prosecution would lead to child-support payments could, "at best, be termed only speculative." For this reason, we held that the plaintiff lacked standing. Only then, after resolving the standing question on redressability grounds, did we add that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." In short, we denied standing in Linda R. S. because it was speculative that the plaintiff's requested relief would redress her asserted injury, not because she failed to allege one.

There are further problems with Justice Kavanaugh's reliance on Linda. R.S. Does Linda R.S. even apply to the immigration context? Justice Kavanaugh cites one case in a string cite, which the Solicitor General also cited:

cf. Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 897 (1984) (citing Linda R. S. principle in immigration context and stating that the petitioners there had "no judicially cognizable interest in procuring enforcement of the immigration laws" by the Executive Branch).

Justice Alito's dissent explains why Sure-Tan burns:

The Court notes in a quick parenthetical that the "Linda R. S. principle" was once "cit[ed] . . . in [the] immigration context" in Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 897 (1984), ante, at 5. But Sure-Tan's single "[c]f." cite to Linda R. S. provides the Court no help. 467 U. S., at 897. Sure-Tan only rejected (quite reasonably) any standalone "cognizable interest in procuring enforcement of the immigration laws" by a party who lacked any "personal interest." Ibid. (emphasis added). And it did so, not as part of a standing analysis, but as part of its explanation for rejecting two employers' attempt to assert that seeking to have employees deported as retaliation for union activity was "an aspect of their First Amendment right 'to petition the Government for a redress of grievances.'"

That's some thin gruel to extend Linda R.S. to the immigration context. There is another reason to question the relevance of  Linda R.S. Immigration enforcement is a civil, rather than a criminal matter. (United States v. Hansen addressed this distinction.) The word "arrest" is not wrong in this context. Indeed, Section 1226(a) provides that "On a warrant issued by the Attorney General, an alien may be arrested." But Texas's suit concerned Section 1226(c), which references detention: "The Attorney General shall take into custody . . . ." There is a difference between the prosecutorial discretion of a criminal district attorney, and prosecutorial discretion for federal immigration enforcement. Congress has imposed fairly stringent standards for the latter--even if it has failed to provide sufficient funding to enforce the laws. The majority sought to avoid infringing on Article II, but in the process, disregarded how the executive abused Article I. I think the analogy between criminal prosecutions and immigration detainers does not hold. This precedent fails on so many levels.

What about the sentence from Linda R.S. that Justice Kavanaugh quoted over and over again? Barrett described it as a "bonus discussion--that is, dicta.

I see little reason to seize on the case's bonus discussion of whether "a private citizen" has a"judicially cognizable interest in the prosecution or non-prosecution of another" to establish a broad rule of Article III standing.

Let's assume that Linda R.S. applies to an immigration case. Is that precedent even analogous to the relief Texas sought? Remember, that Texas case concerned a request to criminally prosecute deadbeat dads. For starters, Justice Kavanaugh was incorrect in stating, over and over again, that "The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests." Justice Barrett explains why:

Second, even granting the broad principle the Court takes from Linda R. S., I doubt that it applies with full force in this case. Unlike the plaintiff in Linda R. S., the States do not seek the prosecution of any particular individual—or even any particular class of individuals. See ASARCO Inc. v. Kadish(1989) ("[F]ederal standing 'often turns on the nature and source of the claim asserted'"). In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens. See Brief for Respondents 15; Tr. of Oral Arg. 124–125. They acknowledge that 8 U. S. C. §1226(c)(1)'s detention obligation "only applies until" the Government makes "a decision whether or not to prosecute." Tr. of Oral Arg. 100. And they readily concede that if the Government decides not to prosecute, any detention obligation imposed by §1226(c)(1) "immediately ends."

Linda R.S. provides no basis for the majority opinion. Yet, Justice Kavanaugh's breezy 14-pager relies almost exclusively on this precedent. Did Justice Kavanaugh have a response to Justice Barrett? No. As he is wont to do, Justice Kavanaugh simply ignored the former procedure professor who runs circles around him. Indeed, the other Justices are starting to call Kavanaugh out for playing fast-and-loose with facts and law. Justice Alito wrote that Justice Kavanaugh "omits much that is necessary to understand the significance of its decision." And Justice Gorsuch asked if Justice Kavanaugh "ignored" Texas's arguments concerning the Take Care Clause. These ultra-short opinions aren't fooling anyone.

Even worse, Justice Kavanaugh quietly modified Linda to establish a new rule. It's not enough to assert an injury in fact, as that term is understood by Lujan. Rather, under the Kavanaugh test, there must be some sort of "tradition" of courts recognizing that type of injury. In other words, for an injury to be "judicially cognizable," the asserted injury must "'traditionally [be] thought to be capable of resolution through the judicial process'—in other words, that the asserted injury is traditionally redressable in federal court." To be clear, Justice Kavanaugh mentions redressability, but the focus is on whether the injury is "judicially cognizable." (The loose language here will no doubt create confusion.)

Under this standard, the Court should now apply some sort of "history and tradition" test when assessing whether the plaintiff has asserted an injury in fact. And really, as Justice Alito notes, "no history is discussed apart from those cases," so the test is just tradition. It's like Bruen for standing! And Texas flunks this test: "The States have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions." This framework is not clearly stated in past precedent. As Justice Barrett demonstrates, Linda R.S. accepted that the plaintiff had an injury. Rather, the Court adds a new gloss on the Lujan framework. Ultimately, the Court quietly misread a five-decade-old precedent to develop a new restriction on Article III standing--a restriction gerrymandered to the facts of this case. The lower courts will have a blast with this decision!

After five years on the Court, Justice Kavanaugh continues to confound me. I know he is more capable than the work-product he produces. Just this past week, he wrote four super-short opinions, which cut corners on law and fact, and failed to respond to pointed concurrences/dissents. Justice Kavanaugh was a well-regarded circuit justice for more than a decade. He routinely prepared intricate and careful decisions about the most arcane topics. But on the Supreme Court, his breezy approach to judging leaves so much to be desired. What happened? To use a theme from the case, his development was arrested. I'm about to write a sentence I never thought I would write: Justice Jackson's opinions this term have displayed more analytical rigor than Justice Kavanaugh's. Seriously, read her dissent in Coinbase v. Bielski,  and tell me you were not persuaded--at least Justice Thomas was. At this point, Justice Kavanaugh is probably done with majority opinions for this term, so at most we'll get a few frustrating concurring opinions. I hope next term brings an improvement.