Last week, Justice Kavanaugh wrote four opinions of exceedingly short length. Arizona v. Navajo Nations was thirteen pages, Pugin v. Garland was ten pages, Coinbase, Inc. v. Bielski was ten pages, and United States v. Texas was fourteen pages. I am generally a fan of short opinions. Brevity is the soul of wit, after all. But Justice Kavanaugh's opinions are not short and witty. Rather, he consistently presents a very narrow conception of the facts, and then quietly modifies precedent to fit those sterilized facts. I've already written about Kavanaugh's anemic opinion in Navajo Nations. I don't have time to write about Pugin and Coinbase, but you should skim the dissents, which I found more persuasive than I expected. (Just CTRL-F the word "majority"). Here, I will discuss Justice Kavanaugh's majority opinion in United States v. Texas–in particular, what he included and what he excluded.
The majority opinion turns almost entirely on Linda R.S. v. Richard D. (1973). The facts of that case are unusual. At the time, Texas law apparently obligated prosecutors to bring charges against married fathers who did not pay child support. But the law did not require prosecutors to bring charges against unmarried fathers who failed to pay child support. The mother of an illegitimate child filed a suit that would have compelled prosecutors to charge these deadbeat dads. You'll be forgiven if you missed Linda R.S. The Solicitor General's brief devoted about two paragraphs to the case, and Texas's brief devoted about two sentences to the Marshall decision. But that decision included a very useful sentence: "A citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." And, as Justice Kavanaugh sees it, that is exactly the relief Texas sought: "The States essentially want the Federal Judiciary to order the Executive Branch to alter its arrest policy so as to make more arrests." Therefore, the Court held, the plaintiffs do not assert a judicially cognizable injury-in-fact.
Justice Barrett's concurrence demonstrates that Justice Kavanaugh misread Linda R.S. That case concerned what Lujan described as the redressability prong. The Court indeed found that the plaintiff had suffered an injury, but concluded that the Court could not issue a remedy that would redress the injury. Specifically, ordering the prosecutor to bring charges against the deadbeat dad would not necessarily compel him to pay child support. (Indeed, an incarcerated father seems less likely to pay child support.) The relationship between injury and redressability often blurs together–the ability for the court to order some remedy that redresses an injury often turns on what the asserted injury is. But it is possible to have an injury, even if the court cannot issue an order that would redress that injury. I noted earlier that Justices Gorsuch, Thomas, and Barrett concluded that a statute prohibited the issuance of an injunction in this case–thus the states suffered an injury that the courts could not redress.
