Justice Kavanaugh’s concurrence in Trump v. CASA, Inc. attempts to navigate the tension between the majority’s historical formalism and the pragmatic demands of modern governance. While joining the Court’s holding that district courts lack the equitable authority to issue universal injunctions under the Judiciary Act of 1789, Kavanaugh candidly addresses the chaos that might ensue. His concurrence is a blueprint for a centralized, hierarchical system of judicial review, one that replaces the decentralized power of individual district judges with the centralized authority of the Supreme Court, exercised primarily through the emergency docket. This vision, while offering a solution to the problem of uniformity, accelerates the transformation of the Court's role in ways that present significant institutional risks.
Kavanaugh correctly identifies the instability inherent in a system where major federal policies are subject to conflicting, plaintiff-specific injunctions. He acknowledges that a “patchwork scheme,” where a significant federal action applies in some parts of the country but not others for years pending final review, is often “not especially workable or sustainable or desirable.” This pragmatic recognition distinguishes his approach from a pure formalism that might ignore the functional realities of the administrative state.
If district courts cannot provide uniformity, Kavanaugh argues, the Supreme Court must. He explicitly embraces the Court’s role as the “ultimate decider” of the “interim legal status” of major federal actions. This is a profound conceptual shift. It moves the Supreme Court from a tribunal of last resort, focused on deliberate review of a curated merits docket, to a first-response arbiter of national policy disputes. Kavanaugh contends this is not an abdication but a necessary fulfillment of the Court’s role to provide “clarity, stability, and uniformity.”
The mechanism for this centralized control is the emergency (or “shadow”) docket. Kavanaugh envisions a rapid escalation of challenges to major policies: district courts issue plaintiff-specific relief, followed by swift appeals, culminating in emergency applications to the Supreme Court. The Court’s ruling on these applications, he notes, will often constitute “de facto” precedent settling the interim status of the policy nationwide.
This proposal seeks to replace the perceived disorder of conflicting lower-court injunctions with the decisive authority of the Supreme Court. However, it trades one set of institutional concerns for another, perhaps more profound, set.
First, the reliance on the emergency docket institutionalizes a mode of adjudication characterized by truncated briefing, limited factual development, and the absence of full oral argument. Resolving the legality of complex regulatory schemes or executive orders often requires extensive records and careful deliberation. By accelerating this process, Kavanaugh’s vision risks entrenching a system of “rushed, high-stakes, [and] low-information” decision-making—ironically, the very critique often leveled against district courts issuing universal injunctions. The potential for error in complex cases is significant, and precedents set via the shadow docket often lack the thorough vetting that characterizes the merits docket.
Second, this vision exacerbates the politicization of the Court. By making the Supreme Court the immediate and necessary battleground for every major policy initiative, it thrusts the Court perpetually into the center of the nation’s most contentious political disputes. This undermines the traditional “cooling function” of the lower appellate courts and threatens the perception of the Court as a neutral legal arbiter. While Kavanaugh emphasizes that Justices have life tenure to make “tough calls,” the institutional strain of constantly refereeing political battles on an emergency basis cannot be understated.
Third, the proposal marginalizes the Courts of Appeals. By emphasizing rapid escalation to the Supreme Court, it diminishes the significance of circuit-level review and the value of percolation—the process by which different circuits analyze complex legal questions, allowing the Supreme Court to benefit from a diversity of reasoned opinions. Kavanaugh’s model bypasses this deliberation in favor of immediate uniformity.
Kavanaugh does endorse alternative pathways for broad relief in the lower courts: Rule 23(b)(2) class actions and APA vacatur. His explicit mention of these mechanisms signals that the demise of the universal injunction is not the end of nationwide relief per se. However, these alternatives come with their own complexities. Class actions impose significant procedural hurdles, and the scope of APA vacatur remains contested (and explicitly reserved by the majority). If these mechanisms prove inadequate or are subsequently restricted, the pressure on the Supreme Court’s emergency docket will only intensify.
Ultimately, Justice Kavanaugh’s concurrence offers a pragmatic solution to the problem of patchwork legality created by the majority's ruling. However, his solution relies on a dramatic rethinking of the Supreme Court’s function. It prioritizes uniformity and speed at the cost of deliberation and the traditional appellate process. By seeking to replace the universal injunction issued by a district court with a de facto universal ruling issued by the Supreme Court on an emergency basis, Kavanaugh advocates for a profound centralization of judicial power that strains the Court's institutional capacity and risks compromising the quality and legitimacy of its decision-making.