The shadow docket fails again

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Although many criticisms have been made of the Supreme Court’s rulings on its emergency docket, one that has not received enough attention is the court’s failure to follow well-established principles for staying a preliminary injunction, which – while it may sound technical – has enormous importance. This has been evident in many shadow docket decisions, but was particularly evident in the court’s Nov. 6 ruling in Trump v. Orr. In Orr, the court, by an apparent vote of 6-3, stayed a preliminary injunction preventing the Trump administration from implementing a rule requiring that passports indicate a person’s sex at birth.

I have strongly criticized the court for issuing several major rulings on its emergency docket without an opinion or explanation. The parties, decisionmakers, the public, and lower court judges need to know why the court came to its conclusions, which often affect matters of life and death and basic aspects of freedom. In Trump v. Orr, there was a short opinion explaining the court’s decision. It shows that the court failed to follow not only basic principles of appellate review, but common sense, as well. And it again reveals the problems with deciding important matters on the emergency docket without the thorough consideration of cases decided on the merits.

To back up a bit: For 33 years, individuals have been able to obtain passports that reflect their gender identity. In 2021, the State Department allowed applicants to self-select the sex marker that matched their gender identity, including marking X for neither.

On Jan. 20, President Donald Trump issued Executive Order No. 14168, characterizing transgender identity as “false” and “corrosive” to American society. The order asserted that “the policy of the United States” is “to recognize two sexes, male and female,” which it defined based on the sex assigned “at conception.” And the order directed the Secretary of State to require that any new government-issued identification documents reflect the holder’s “biological” sex.

A challenge was brought to the State Department’s new passport policy in the U. S. District Court for the District of Massachusetts. The court issued a preliminary injunction, justifying its conclusion in a 56-page opinion. The lower court found that the purpose of a passport is to identify the individual at the time it is presented and it therefore makes sense to have it accurately represent the person’s gender identity today. Also, the lower court found that the incongruity can subject transgender individuals to harassment, violence, and discrimination. The district court balanced the hardships on each side, as is required in considering a request for injunctive relief, and concluded that the government’s interests in having passports inaccurately reflect a person’s current gender identity were minimal. The U.S. Court of Appeals for the 1st Circuit declined to put that order on hold.

But the Supreme Court issued a stay, concluding “the Government is likely to succeed on the merits.” The court said that “the District Court’s grant of class-wide relief enjoins enforcement of an Executive Branch policy with foreign affairs implications concerning a Government document.”

Although the court said that it was applying “our familiar stay factors,” it actually did not follow them. Under the court’s 2009 decision in Nken v. Holder, the government,in seeking a stay of a preliminary injunction, has the burden to make a “strong showing that [it] is likely to succeed on the merits,” that it “will be irreparably injured absent a stay,” and that the balance of harms and public interest favor a stay.  

The court’s majority, though, did not follow these requirements. It did not put the burden on the government to establish a strong showing that it was likely to succeed on the merits. Instead, the order put the burden on the plaintiffs, saying that, based on the record, they had “failed to establish” animus towards transgender and nonbinary people and were not “likely to prevail” on their claim that the government action was arbitrary and capricious.

Furthermore, it is impossible to say how the government is irreparably injured when passports correctly reflect a person’s gender identity. As Justice Ketanji Brown Jackson said in her dissent, “At the end of the day, then, despite its heavy burden to support its bid for a stay, the Government has not identified or articulated any way in which it will actually be harmed if it cannot enact its new Passport Policy while the parties litigate whether that policy is lawful.”

The order refers to the Trump administration passport policy as “an Executive Branch policy with foreign affairs implications concerning a Government document.” But there is no explanation of how foreign affairs are implicated by the sex marker on a person’s passport. This assertion is especially questionable because the United States allows individuals with passports from other countries that do not reflect their sex assigned at birth and that have an X marker to freely enter and exit the country.  

That is not where the trouble ends, however. In stating that “[d]isplaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth,” the order ignores that a passport holder’s country of origin is not used for identification purposes, unlike the sex marker on a passport. So these are not analogous. And the order’s conclusion that “in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment” ignores that the Trump administration policy does treat transgender, intersex, and nonbinary people differently, by denying only them passports with sex markers consistent with their gender identity and by providing only them with passports that will endanger them as they travel. This is particularly problematic for intersex people for whom there may be no “historical fact” of them being male or female, the only options now available. It also ignores that passports do not invariably attest to historical facts, because one can change the name listed on one’s passport.

The court’s order thus seems to suggest that the government suffers sufficient “irreparable injury” merely because a court has put a desired policy on hold. That puts the weights on the scale enormously in favor of the government whenever it seeks an emergency stay.

But perhaps the most egregious departure from traditional principles in considering a stay is the court’s failure to consider the harms to the plaintiffs and to balance the competing interests. As Jackson points out in her dissent, the court’s order says absolutely nothing about the balance of harms or the “public interest,” disregarding altogether the district court’s findings of harm to the plaintiffs imposed by the Trump passport policy.  

The district court found that the current record demonstrates that transgender people who use gender-incongruent passports are exposed to increased violence, harassment, and discrimination. The Supreme Court’s majority does not, and should not, question that fact-finding. In fact, the court’s opinion does not discuss it at all.

There is much then that is disturbing about the court’s action in Trump v. Orr. Why didn’t the court follow traditional principles in deciding whether to issue a stay? Why did it uncritically accept the government’s interest, and why didn’t it consider the harm to the plaintiffs? Why didn’t the court balance the competing interests as required by its precedents?

Perhaps this reflects further problems with how the court handles matters on the shadow docket. Perhaps it shows a majority of the justices who are strongly disposed to side with the Trump administration even when its policies are unprincipled and harmful. Perhaps it is about a court that is insensitive to transgender, intersex, and nonbinary individuals. And maybe it is all of these.