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.
