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.

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Labrador v. Poe is perhaps the most significant shadow docket decision since the shadow docket became a thing. After endless and breathless criticism from the professoriate, the Justices are finally developing a framework for this new phenomenon, and seem to be coalescing around answers to two pressing questions. First, when should lower courts issue universal, non-party injunctions? Justice Gorsuch's concurrence, which was joined by Justice Thomas and Justice Alito speaks clearly to this issue. And second, how should the Supreme Court review universal, non-party injunctions on the emergency docket? Justice Kavanaugh's concurrence, which was joined by Justice Barrett, speaks clearly to this second issue. Both of these important writings reflect a lot of careful thought and attention on a matter of public concern. I will address the Gorsuch concurrence in this post, and the Kavanaugh concurrence in a later post.

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[This post is co-authored with Professor Seth Barrett Tillman].

On April 16, 2024, the Supreme Court decided DeVillier v. Texas. The question presented was whether "a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action." However, the Court did not need to answer that question because "Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause." The Court unanimously ruled that DeVillier's claims could "proceed under Texas' state-law cause of action."

Justice Thomas wrote the unanimous opinion for the Court. Thomas provided a brief summary of how constitution rights can be litigated in federal court:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)

Here, Justice Thomas describes the sword-shield dichotomy that we had advanced during the Fourteenth Amendment, Section 3 litigation. When a constitutional right is "asserted offensively," it must be brought pursuant to an "independent cause of action designed for that purpose," such as Section 1983. By contrast, a constitutional right can be "invoked defensively" without a cause of action in a criminal prosecution or some other state enforcement action. This simple dichotomy reconciles Griffin's Case (C.C.D. Va. 1869) (Chase, C.J.) and the Case of Jefferson Davis (C.C.D. Va. 1868) (Chase, C.J. and Underwood, D.J.). It also makes sense of much of the Court's remedies doctrine.

Justice Thomas cited Egbert v. Boule, but this case only concerned a limitation on the Bivens (1971) remedy. That case did not speak to the offense/defense or sword/shield dichotomy. Thomas only cited Section 1983 itself, which does not directly support the proposition at issue. Still, we think the Court has clarified the law here in an important fashion. As best as we can recall, DeVillier is the cleanest statement of this principle in the Court's precedents. (Accord Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978) (citing Griffin's Case).) Federal courts casebooks should take note. If only Justice Thomas had cited Griffin's Case! For those interested in reading further, we discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs' purported Section 3 action).

We are grateful that our theory of constitutional litigation has seen resonance in the courts.

On Tuesday, the Court decided Rudisill v. McDonough. This case involved a retired Army officer who was trying to use educational benefits under two different programs. The statutory interpretation question is rather complicated. The Court split 7-2. Justice Jackson wrote the majority opinion, holding that the servicemember could use benefits from either program, in any order. Justice Thomas dissented, joined by Justice Alito, finding that the servicemember could not receive certain benefits in this case.

This is a case where Justices Thomas and Alito clearly voted against their interest. The Court's two most conservative members said GI No! The plaintiff was an Army Captain who sought to use his educational benefits at Yale Divinity School to become a chaplain.  I don't think you could have genetically engineered a more conservative-friendly plaintiff in a laboratory at the Reagan Library. This case is the inverse of Justice Scalia ruling in favor of the flag-burning Gregory Lee Johnson. If Justices Thomas and Alito found this statute unambiguously supported the federal government's position, against the veteran, I am inclined to agree. Indeed, the very last sentence of the dissent accused the majority of "ignor[ing]" the statute "in favor of an interpretation that reaches a desired outcome." We support the troops!

Here, I wanted to flag Justice Kavanaugh's concurrence, which was joined by Justice Barrett. The lower court relied on the "pro-veteran canon." Under this canon, which I had never heard of, ambiguous statutes should be read to favor granting benefits to veterans. The majority found the statute was not ambiguous, so the canon did not apply.

Justice Kavanaugh wrote a careful five-page concurrence explaining why the veterans canon should not be used at all. Regular readers will know that I routinely criticize Justice Kavanaugh's writings. But this is one of the most insightful opinions I've read from him–at least since Calvary Chapel in July 2020.

Kavanaugh wrote separately "to note some practical and constitutional questions about the justifications for a benefits-related canon (such as the veterans canon) that favors one particular group over others." This analysis stretches beyond the veterans canon. Justice Kavanaugh cast doubt on substantive canons, more generally. He described a substantive canon as a "judicial presumption in favor of or against a particular substantive outcome." Kavanaugh offers several examples, such as "the presumption against retroactivity, the presumption against extraterritoriality, and the presumption of mens rea." One other, far more timely example, is Chevron deference: where a statute is ambiguous, you defer to the government's preferred reading. Indeed, Kavanaugh described Chevron to a tee:

Applying a substantive canon, a court may depart from what the court, absent the canon, would have concluded is the best reading of the statutory text. Otherwise, of course, the substantive canon would not be necessary or relevant.

I can see this passage being quoted in Kavanaugh's Loper Bright concurrence. Indeed, I suspect he wrote this concurrence as a prelude to Loper Bright.

The remainder of Kavanaugh's opinion explains why the veteran canon is basically made-up, and was an "accident" of history.

Substantive canons are typically based on background constitutional principles or long-settled judicial understandings of congressional practice. See id., at 382– 384. Because a substantive canon by definition hasimportant decision-altering effects, any substantive canon must be sufficiently rooted in constitutional principles or congressional practices. Here, no one suggests that the veterans canon rests on background constitutional principles. . . . The canon appears to have developed almost by accident.

Kavanaugh also explains why this canon conflicts with the separation of powers.

To begin with, the notion that benefits statutes should be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws. . . . And the U. S. Treasury is not a bottomless well of free money—rather, the money comes primarily from the taxes paid by the American people. . . .

In addition to that practical problem, judges have no constitutional authority to favor or disfavor one group over another in the spending process. Rather, under the Constitution's separation of powers, Congress and the President make those policy judgments. See U. S. Const., Art. I, §7, cl. 2; §8, cl. 1; §9, cl. 7. Courts must then neutrally interpret and apply the spending laws enacted by Congress and the President. Courts do so by heeding the statutory text and employing the traditional tools of statutory interpretation—not by singling out particular groups for favored or disfavored treatment.

I think Kavanaugh is exactly right (a sentence you will not write often). A substantive canon that presumes that money should be spent in favor of a particular class cannot be consistent with the strict appropriations process between Congress and the President. Congress, and not the Courts, has to make the difficult decision of how money is spent.

By contrast, as Justice Gorsuch has pointed out, the major questions doctrine as a substantive canon reinforces the separation of powers. I suspect that Kavanaugh and Barrett do not agree on the MQD, as Barrett's Biden v. Nebraska concurrence is cited nowhere in Rudisill.

Kavanaugh closes with this passage:

The Judiciary's role is to neutrally interpret those statutes, not to put a thumb on the scale in favor of or against any particular group.

Well said. And I think this statement can easily be subbed in for opposition to Chevron deference. Indeed, in Loper Bright, Paul Clement used the "thumb on the scale" imagery.

Stay tuned.