On Monday, the Supreme Court granted a stay in Noem v. Perdomo. The vote was (likely) 6-3. Justice Kavanaugh wrote a ten-page concurrence. Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a twenty-page dissent.
This case was first filed on August 7, and briefing was completed on August 13. The Justices in the majority had about a month to put together a majority opinion. They didn't. Why? Perhaps the majority could not come to a consensus on a single line of reasoning--whether on Article III standing or the Fourth Amendment. Perhaps the majority simply didn't feel the need to write a majority opinion, because this is only an interim order. Or maybe a book tour got in the way of writing something. Well, it's hard to read the opinion when there isn't an opinion to read.
I don't have any particular expertise on the interaction between Article III standing and police stops, or on the Fourth Amendment issue. But I will commend Justice Kavanaugh, once again, for explaining his thinking. I don't know if Kavanaugh's views command a majority of the Court, but it is difficult to think of any other basis on which a stay could have been granted. We've seen some lower courts favorably cite dissents on the emergency docket. I think the judges in California would be prudent to cite Justice Kavanaugh's concurrence over Justice Sotomayor's dissent.
