Bonus 76: Justice Kavanaugh's Defense of the Shadow Docket
In a 13-page concurrence defending the Court's recent behavior respecting emergency applications, Justice Kavanaugh failed to engage with some of the central critiques of that behavior.
Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:
This week’s bonus issue was prompted by Monday’s (long overdue) decision by the Supreme Court in Labrador v. Poe ex rel. Poe, in which the Court granted Idaho’s emergency application to put back into effect most of its state-law ban on gender-affirming medical care for transgender adolescents (the ban is still on hold as applied to the plaintiffs in this specific case). There was no opinion for the Court, but three separate opinions: A concurrence by Justice Gorsuch (joined by Justices Thomas and Alito); a concurrence by Justice Kavanaugh (joined by Justice Barrett); and a dissent by Justice Jackson (joined by Justice Sotomayor). Justice Kagan publicly noted her dissent but did not provide an explanation for it; Chief Justice Roberts did not publicly note his vote at all (and therefore we don’t know whether the decision was 5-4 or 6-3).
There’s a lot to say about the debate between the Gorsuch and Jackson opinions, and I’m planning to address at least some of that in next Monday’s regular issue. But for now, I wanted to focus on Justice Kavanaugh’s 13-page concurrence—which attempts to provide a more comprehensive overview of the issues the Court is facing in emergency applications like this one (i.e., when the question is whether a state or federal law should be blocked or put into effect for the duration of a lawsuit challenging it). It is, by far, the most extensive effort to date in an opinion by any of the justices to engage with the challenges that the recent uptick in emergency applications have presented. And in at least some respects, it appears to be intended quite openly as a response to some of the more vocal critics of the Court’s behavior.
As I explain below the fold, there is quite a lot to like (and agree with) in Justice Kavanaugh’s analysis. Indeed, the opinion puts its finger quite directly on how the Court has gotten into this mess, and offers some useful reflections on the challenges judges and justices are increasingly facing in this kind of fast-paced, injunction-driven litigation. But I think the opinion has three significant problems in how it rationalizes the Court’s behavior in cases like this—which will become especially problematic if this opinion becomes the framework for how the Court’s median justices approach similar applications in the future, and which suggest that the opinion isn’t really engaging with some of the most vocal criticisms of the Court’s recent behavior.
For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.