Tuesday, September 09, 2025
Lyons, standing, and the Shadow Docket
We wil discuss the shadow (or emergency or interim or Voldemort*) docket in Fed Courts today, the first time it has been included in the book and the first time I included it as part of the planned class discussion. The timing is fortuitous. Last week, Justice Gorsuch calling out district judges for not giving unexplained orders sufficient deference and district judges pushing back. Yesterday, the Court without explanation (except from Justice Kavanaugh’s ongoing campaign to be liked) greenlit a show-me-your-papers if you speak Spanish and hang out at Home Depot in LA offensive and Justice Roberts issued an administrative stay that (along with Boyle and Wilcox) marks the death knell for Humphrey’s Executor.
[*] This nascent debate hearkens back to the debate, resolved in my favor in CASA FN 1, over the nomenclature for universal/nationwide/whatever injunctions. One commentator tried to move off this by calling them Voldemort Injunctions.
It is hard to avoid the snarky conclusion that district courts’ only move right now is to deny the injunction in every challenge to administration policies and actions. Or immediately stay any injunction. Either way, SCOTUS is signaling that the administration must be allowed to pursue its preferred actions unless and until it–and only it–resolves the lawfulness of those actions.
Specifically on Noem v. Vasquez Pedromo. I believe ICE’s efforts normatively abhorent and violative of the Fourth Amendment. But I initially believed Kavanaugh had a point about Lyons v. Los Angeles, which makes it hard to establish standing to pursue pre-enforcement challenges to law-enforcement stops. Courts must presume the plaintiff will violate some valid law and thus trigger the L/E encounter. I had the same thought about the suit a decade ago challenging stop-and-frisk in New York.
But a commenter on the Con Law Listserv clarified the point in a way I think is right. Lyons’ problem was that he was not likely to break any law or otherwise attract police attention–certainly no more likely than any other person. But these plaintiffs–because of their appearance, language, and where they seek work–do face a higher risk of being stopped. That should be enough to establish standing. And certainly enough to warrant leaving the injunction in place pending full merits review.
Posted by Howard Wasserman on September 9, 2025 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink
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