Earlier, I noted that Labrador v. Poe was the Supreme Court's most significant shadow docket decision since the shadow docket became a thing. Justice Gorsuch's concurrence, which was joined by Justices Thomas and Alito, signals that the Court will now carefully scrutinize non-party, universal injunctions issued against state laws. Perhaps even more significant was Justice Kavanaugh's concurrence, which was joined by Justice Barrett. Justice Kavanaugh addresses a threshold question: what are the "best processes for analyzing likelihood of success on the merits in emergency cases"?
This may be the most important opinion that Justice Kavanaugh has written on the Supreme Court. Justice Kavanaugh is laying out a unifying theory for the Shadow Docket. Every page brought new insights that reflect thoughtful consideration of a very complex topic. As regular readers know, I am often an outspoken critics of Justice Kavanaugh's separate writings, but his Labradaor concurrence changed the way I think about the emergency docket. Coupled with his textualist concurrence in Rudisill from Tuesday, Kavanaugh may have had his most productive twenty-four hours on the high court.
I'll break down the concurrence into eleven principles.
