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.
