After three years on the court’s “interim” docket, Hamburger Mary’s will no longer be able to show “adult live performances” to minors.
Justice Kavanaugh has employed the phrase “interim docket” to describe the Supreme Court’s emergency rulings, which often set the provisional rule while the dispute winds its way through the lower courts. That provisional phase can extend for years.
That is the situation in Griffin v. HM Florida-ORL. A Florida statute barred restaurants from displaying “adult live performances.” A federal district court judge issued a universal injunction against the law that extended to Hamburger Mary’s as well as non-parties. In October 2023, Florida urged the Supreme Court to limit the injunction to Hamburger Mary’s.
Justices Thomas, Alito, and Gorsuch would have granted that relief, but they were in the minority. Justice Kavanaugh, largely joined by Justice Barrett, concurred in the denial of the stay. Kavanaugh explained that the question of the universal injunction is complicated by the overbreadth doctrine. He wrote, “This case is therefore an imperfect vehicle for considering the general question of whether a district court may enjoin a government from enforcing a law against non-parties to the litigation.” (One can imagine Florida parents concerned about drag performances finding this vehicle issue somewhat unsatisfying.) Kavanaugh went further to explain that this issue is “distinct” from the set-aside function under APA 706. Remember, this ruling came nearly seven months before CASA. Justice Barrett did not join the footnote about the APA. I discussed the concurrence at length here. Ultimately, Kavanaugh said “this Court is not likely to grant certiorari on the only issue presented in Florida’s stay application.” I suppose that carefully parsed statement about cert-worthiness was accurate, but the issue remained alive.
Over the next three years, Florida’s law lingered in interim-docket purgatory. Today, at long last, the Eleventh Circuit sitting en banc declared the Florida law constitutional. Judge Brasher’s majority opinion explains:
After additional briefing and with the benefit of oral argument, we are convinced the district court erred in preliminarily en-joining the enforcement of the Act. This is so for two reasons. First, the district court lacked authority to impose a universal injunction that prevented the enforcement of the Act against everyone in Florida. The Supreme Court has held that a so-called “universal injunction” “falls outside the bounds of a federal court’s equitable authority under the Judiciary Act,” id. at 847, and we see no exception that would apply in this case. Second, Hamburger Mary’s was not entitled to even a more limited preliminary injunction to prevent the enforcement of the Act because its claims do not have a substantial likelihood of success on the merits. The Supreme Court of Florida’s definition of “lewd” eliminates any overbreadth, and the use of the phrase “age of the child present” does not render the Act unconstitutionally vague. Accordingly, we vacate the district court’s preliminary injunction in its entirety.
Judge Grant (who clerked for Justice Kavanaugh), joined by Judge Newsom, would only have decided the First Amendment issue, and not settled the scope of the injunction.
Still, no matter how certain we may be that the district court erred in the scope of its injunction, we should not say so. Because we conclude that the statute is constitutional, any follow-on decision about the district court’s earlier injunction is simply advisory.
As a result, only six members of the fourteen-member en banc court decided the question concerning the universal injunction. So the universal injunction issue remains alive.
Now this case likely goes back to the Supreme Court. Given the sharp split of the en banc court, one would think Justices Kavanaugh and Barrett now see this issue as cert-worthy. As I noted in my recent National Review essay, the clearest indication of change at the Court will be fewer cert denials accompanied by three dissentals.
