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

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

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

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

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

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

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