Neither Snow Nor Rain Nor Heat Nor Gloom Of Night Will Stop The Shadow Docket.
Tonight, the Court issued its decision in United States Postal Service v. California. Too often, the path a case takes through the judiciary is described as tortured, and in truth that descriptor fits this one as well. Here are a few overarching reflections.
First, the majority opinion—perhaps, in its own way, a concession to brevity—offers only a couple of lines of analysis.
The government is unlikely to prevail on the merits of its challenge to the District Court’s preliminary injunction. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay.
I say “perhaps” because the Court chooses to resolve the merits on the emergency docket without any elaboration. Justice Alito, joined by Justice Thomas, supplies a full examination of why he believes the government succeeds on the merits. Justice Kavanaugh agrees with Alito on the substantive question. The majority, however, declines to say more than a brief statement. This stay application has lingered on the docket for nearly a week, yet the issue has been percolating for months. One wonders if Chief Justice Roberts could have offered a few sentences to explain why Trump loses—much like he did in the ballroom case. But that is not the point here.
All the Court needed to write to deny the stay was a determination that the equities did not favor emergency relief. Those are the grounds on which Justice Kavanaugh ruled. Yet the Chief Justice did not want this matter to return, so he reached for the merits. If there is no need to decide more, the Court should leave well enough alone. Except, of course, when a Trump administration policy is involved. That, alas, seems to have been the lesson from the prior term. Regrettably, Justices Gorsuch and Barrett joined in the Chief’s quick, expansive treatment of the Trump policy.
Second, turning to Justice Kavanaugh, the pattern is clear: he is inclined to reject any emergency request that would abruptly alter election rules before an election. This posture mirrors his rapid denials in the Missouri cases. At least he stays consistent in that respect. Questions about whether the Missouri plaintiffs had appellate standing were substantial; similarly, in the postal case, Justice Alito flags serious standing questions. Yet on emergency matters, when the equities look strong, the Court can treat standing as a technicality to be bypassed. Where, then, does Justice Barrett stand, given her reputation as the procedural compass of the Court on these matters?
Third, only three votes here align with Trump on the merits. Why, then, did Justice Kavanaugh signal his vote at all? In numerous decisions, Kavanaugh finds a route to rule against Trump while suggesting that, if the facts were different, he would side with him. It’s a perplexing pattern. Indeed, it stands in stark contrast to Roberts, who sometimes seemed to align with the other side in the past. Today, with Roberts and Kavanaugh not sharing the same wavelength when it matters, the dynamic is markedly unsettled.
Fourth, the silence from Alito and Thomas in the Missouri proceedings is notable. A recent discussion from Mollie Hemingway’s new book on Justice Alito casts him as the Court’s “Green Berets”—an elite force that strengthens any position it enters. The justice is known for using military cadence when briefing his clerks, signaling that sometimes the risk of advancing an issue is not worth the potential gain. It appears Alito judged the Missouri matter not worth risking, especially since Kavanaugh was locked in and the issue would not revisit the Court. Yet in the postal dispute, Alito chose to take point, recognizing that the litigation would persist in the lower courts.
Fifth, Alito’s remarks also spotlight standing as a central concern. In his view, the District Court issued a nationwide injunction premised on claims brought by several plaintiff organizations that probably lack standing. These groups argue they suffer a direct injury as they claim the rule interferes with their ability to educate members about voting. Yet their theory frames injury as a “setback to the organization’s abstract social interests,” a concept that risks allowing a litigant to manufacture standing merely by spending money to obtain information and advocate against the defendant’s actions. See FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 394 (2024), for support of this caution.
Justice Gorsuch has long sought to curb this kind of “offended observer” standing and the related doctrines. Where does he stand on this issue now? And Justice Barrett? The AHM decision may have been harsh, but the Court should apply it consistently across the ideological spectrum.
Sixth, Alito pins part of the delay on Justice Jackson, arguing that the timing was not purely the government’s doing:
Not only did the government endure months of premature litigation and a sequence of injunctions the Court later suggested might have lacked jurisdiction, but it also waited nearly another full month for the Court to issue its ruling. Indeed, from late July to the end of August, the Court produced almost forty pages of opinions—two dissents included—despite the government publicly indicating it would not publish a final rule while the injunctions remained in place, see 91 Fed. Reg. 44880, and its stated intent to issue the rule early to mid-August to facilitate implementation. The plaintiff-states cannot claim that the timing of the rule tilts the equities in their favor when they, and the courts hearing their claims, bear much of the responsibility for the delay.
The reference to forty pages of opinions serves as a direct rebuke to Justice Jackson’s description of the situation as a “Kafkaesque nightmare.” The Court would have been better off resolving the earlier version of the case outright so that the fully prepared dispute could be revisited later. Yet the Chief did not press the issue, and he tolerated Justice Jackson’s extended dissent, which argued the government lost on the equities due to timing. This is precisely why the Court’s speed—or lack thereof—matters. Critics of the emergency docket often overlook why different cases proceed at different paces. The Court, it seems, may be arranging matters to suit its preferred outcomes.
Seventh, there is a broader strategic reflection: the administration’s decision to push this case to the Court on multiple occasions may have been unwise. A more measured course, litigating at a steady pace through the regular docket ahead of the 2028 election, could have been safer. I do not pretend to fully grasp all the considerations involved in such urgency. In the end, the government secured only three votes on the merits and, in the process, established a precedent that these kinds of rules can be reviewed under the APA. Taken together, the episode yields more questions than answers and yields little clear gain.
