| Last week’s decision by the Supreme Court in Trump v. Orr, granting a stay of a lower court preliminary injunction that had blocked the Trump administration from asking for and including only a person’s biological sex at birth on his passport, illustrates a familiar pattern in interim-relief cases (sometimes called the “emergency docket” or, more pejoratively, the “shadow docket”) at the Court. And the recurring pattern that has been emerging suggests that members of the Court—all across the ideological spectrum—could benefit by reconsidering their approach to these cases. | | Let’s start with a feature of the pattern that is not inherently problematic, or at least not problematic in a way that is specific to the interim-relief setting—a seeming 6-3 lineup with the three Democratic appointees on the Court dissenting from a ruling embraced by all or nearly all of the Republican appointees. To be sure, it is healthy for the Justices and the nation’s people (whose respect and support for the Court is essential to the Court’s function) to have high-profile, politically charged cases decided by lineups that do not appear to be partisan. But the modern reality is that the each political party tends to appoint Justices who have philosophical and ideological orientations than are different from those of Justices appointed by the other party, and while those orientations may not play a large part in most of the Court’s work, there are some cases (including cases about equal protection, the issue apparently central to Orr) where ideology—to be distinguished from partisan zeal—does matter. So I am not concerned by who was apparently in the Court’s majority and dissenting groups in Orr, so much as I am by what the two groups of Justices said to each other (and the rest of the country) in the opinions related to the order granting the stay. | | As for the majority, while it did write an opinion (which is better than not providing an explanation at all, something that has happened in recent months in other cases in which the Court has granted a stay), the opinion is very clipped. As to the merits, the majority says: | Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.”
| | In other words, the majority seemingly views this case essentially as one in which the government (which, after all, technically owns U.S passports) is itself speaking (to its own agents and foreign governments), and it has a right to express particular “historical facts” (including a person’s birth sex as recorded on that person’s birth certificate) from the government’s perspective. Even if an individual (e.g., a transgender individual) defines her own sex or gender differently, she is not entitled to have the government agree, especially for purposes of a government document that is used primarily for identification purposes. Indeed, the government’s moving papers characterize the case as one in which private persons are trying to compel the government to express the individuals’ messages (an inversion of the more common setting in which challengers claim the government is violating the First Amendment by compelling them to speak the government’s message). | | The majority’s reading of constitutional law is certainly plausible, and indeed will likely carry the day. But government speech is more complicated than the Court lets on. Imagine the government recorded race (on birth certificates and thus on passports) in a way that used a racial epithet (even one less extreme than the N-word) for black persons. Or, perhaps more realistically, what if government forms and passports capture race in a binary white/non-white way, lumping all non-whites together and characterizing them as different from whites? As the Court in Loving v. Virginia pointed out, collapsing all non-whites and distinguishing them from whites might inherently send messages of differential respect that centrally implicate equal protection values. And this is true from the face of the government’s categorization, even apart from any direct evidence of invidious purpose that the majority in Orrseems to require the challengers to adduce (and I say “seems” because the Court refers here to “the record,” but one can’t be sure of much given the brevity of the majority’s explanation). And all of this is true even if the government is merely speaking rather than, as in Loving, regulating people’s ability to marry. | | So at least some more explanation of why the government’s categorization in the passport setting, even if viewed in government speech terms, does not reflect the likelihood of disrespect towards persons based on their sexual identities—for example, an explanation why the government could not easily modify passport forms to make explicit (using, say, “sex at birth” rather than simply “sex”) that the M/F designation is not intended to say or convey anything about a person’s “true” or current gender identity but instead is a description of what in fact was historically recorded by the government at birth—might have been helpful. I say this recognizing the Court does not want to spend too much time writing opinions in stay cases (which, after all, do not resolve the merits of disputes but merely explain the Court’s assessments of “likelihood” of success on the merits). But as the Court balances all the demands on its time and resources, I think the Justices still have room to move in the direction of more complete (if provisional) explanations of their reasoning in stay cases. | | As for the other key factor in stay cases—the stay applicant’s demonstration of irreparable harm if the stay doesn’t issue (in this context, that is, the harm the government suffers if the preliminary injunction remains in effect)—the Court in Orr was even more abbreviated, saying only that the district court’s order “enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document [and for that reason] the Government will 'suffer a form of irreparable injury’ absent a stay [citing to the Court’s Trump v. CASA, Inc. case last year involving universal injunctions].” As with the merits, the Orr Court’s suggestion that the government’s inability to enforce its rules will impair government operations—at least to some extent and in ways that aren’t compensable and are thus irreparable—is certainly plausible, but more explanation by the Court of why birthright sex information on passport forms helps domestic and foreign officials more expeditiously and accurately confirm true identities and process travelers seems in order. (And here we see that the irreparable-harm inquiry can overlap with the merits to the extent that government’s harm takes the form of not being able to accomplish important government objectives, a meaningful factor on the merits.) In this vein, it bears noting that it wasn’t until 1976 that the State Department introduced “sex” as a required marker at all for passports. And one could certainly posit that using only birth sex on passports might hinder, rather than facilitate, efficient identification verification for people who look different from how society might expect people with their birth sex to look. Again, perhaps there were (and are) good reasons for using sex information—and information about sex as defined in birth documents—but many people would not find these reasons self-evident, so that it would have been nice for the Court to offer more here. It also might have been helpful for the majority to explain, other than by a broad and vague reference to “foreign affairs implications,” why the irreparable harms of which the challengers complain (especially harms related to travel delays, harassment, or violence) are not so strong as to tip the balance of equities. | | While the majority opinion in Orr could have been improved in these ways, my stronger suggestions are for the dissenters. As has been true in many other dissents by Justices Ketanji Brown Jackson (the author of the Orr dissent), Elena Kagan, and Sonia Sotomayor, the Orr dissent essentially disclaims any meaningful discussion of likelihood of success on the merits. (The dissent does, albeit literally in a footnote, briefly challenge the legality of the administration’s actions under the Administrative Procedure Act, but it is far from clear the APA applies to presidential directives such as the one at issue in Orr; the majority doesn’t even mention the APA in its clipped discussion of likelihood of success on the merits.) Instead, the dissent repeatedly criticizes the majority for ignoring the irreparable harm to the individuals involved (harms that arise both from the government using a label with which they disagree and, more concretely, the hassles transgender persons may encounter, especially in foreign travel, when the sex identified on their passports does not coincide with the way they physically present) and for failing to identify any irreparable injury suffered by the government in having to wait for litigation to resolve before implementing its policies. Per Justice Jackson: | The Government seeks to enforce a questionably legal new policy immediately, but it offers no evidence that it will suffer any harm if it is temporarily enjoined from doing so, while the plaintiffs will be subject to imminent, concrete injury if the policy goes into effect. . . . The Government . . . fails to explain . . .why such a uniform definition [of sex] needs to be imposed now such that it cannot await the outcome of this litigation. (emphasis in original)
| | But (and notwithstanding my plea above for the majority to explain the irreparable harm to the government in this case more specifically) as I have already explained in previous Verdict columns (see, e.g., here), the government’s inability to enforce a validly enacted law would almost always impose harm. As I have explained: | Why do we have laws in the first place if their timely enforcement doesn’t generate any societal value? (And if there is social value in enforcement there necessarily must be social loss when enforcement is blocked.) And can it really be that delaying law enforcement to a later date imposes no costs on society? If justice delayed is justice denied for individuals, why is enforcement delayed not enforcement denied for society? To be sure, when the government is enjoined from enforcing its permissible laws, the government may be able to accomplish its proffered goals in other (more expensive and cumbersome) ways, but then (since government moneys aren’t unlimited) the resources that are diverted cannot be used for separate yet important and impossible-to-monetize government objectives (such as health, safety and morals) in other arenas.
| | On top of all this, the Court in CASA, Inc. last year was quite clear: “Any time a [government] is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (And the rule for executive orders would be no different than for statutes—CASA, Inc., itself involved an executive order.) While this language may be more absolute than it should have been, Justices Jackson, Kagan, and Sotomayor have (repeatedly) lost on this issue and yet they keep trying to avoid the consequences of this defeat. (That is especially ironic since these Justices are the ones who invoke the importance of respecting stare decisis most frequently of late.) | | Because, in all of the preliminary-injunctions-against-the-government cases at the Court over the past year, meaningful irreparable injury exists on both sides of the litigation (such that the balance of equities involves comparing incommensurable but irreparable injury by both parties), the propriety vel non of a preliminary injunction is going to turn, in the vast majority of cases, on the likelihood of success on the merits. That is the most abiding lesson to take from the interim-relief docket since President Trump assumed office in January of this year. And yet, whether by focusing on stare decisis, or on standing, or on irreparable injury (as in Orr) or on how the President is not waiting for courts to approve his conduct before acting, the liberal dissenters on the Court continue to avoid engaging the majority vigorously on whether the challenged government action is or is not likely unconstitutional. It’s not working tactically, and it’s not working rhetorically; most Americans care about whether the Constitution is being followed, not on the technicalities of federal judicial procedure. | | One final note that highlights the unconvincing nature of dissents like Justice Jackson’s in Orr. She says at multiple points that the government doesn’t show that it is being harmed now. But if it is not being harmed by the district court order now, why would it be harmed if it wins on the merits and is still blocked by a permanent (rather than preliminary) injunction? If there is harm later, there is harm now. And there is no harm later—that is, if there is no harm to the government at all by not being able ever to enforce the questioned policy (and Jackson does suggest she believes that)—then that would suggest the policy fails even rational basis review under equal protection, and Justice Jackson should argue that. But pushing back on the government’s stay application without ever engaging the merits doesn’t work analytically or strategically. |
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