A LGM commenter (JJB) points us towards last week’s op by Owen, reversing the district court’s stay of the Texas anti-abortion statute:
The opinion is appalling on the merits, and the discussion of the stay pending appeal is if anything even worse. Owen devotes all of one paragraph to the other three factors beyond likelihood of success on the merits. She asserts (1) a state is *always* irreparably harmed whenever its law is enjoined; (2) whenever the state is the appellant, its interest is *always* the same as the “public interest”; and (3)even though Planned Parenthood showed real harm on its side, that’s not enough given that the state is likely to succeed on the merits. This approach completely eliminates the other three stay factors whenever a plaintiff successfully enjoins a law at the district court and the state appeals. And, of course, the application here makes no sense: somehow the state would be irreparably harmed by having the status quo continue for two more months, while actual women will be unable to get the services they need until it’s too late (the very definition of irreparable harm).
This is true, and it’s even worse when you look at the op (at 19) and its citations.
The State has made an adequate showing as to the other factors considered in determining a stay pending appeal. When a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws.60 As the State is the appealing party, its interest and harm merges with that of the public.61 While we acknowledge that Planned Parenthood has also made a strong showing that their interests would be harmed by staying the injunction, given the State’s likely success on the merits, this is not enough, standing alone, to outweigh the other factors.
Let’s look at that footnote 60.
Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, Circuit Justice); New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, Circuit Justice).
So not even a real court opinion, just a couple of single-justice decisions regarding other applications for a stay. But let’s see what Roberts had to say:
Finally, the decision below subjects Maryland to ongoing irreparable harm. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351, 98 S. Ct. 359, 54 L. Ed. 2d 439 (1977) (REHNQUIST, J., in chambers).
So Roberts’ sole authority is … the Rehnquist cite that Owen provided. Two citations with the effective strength of one! Now let’s turn to Rehnquist: what cases and logic did he provide? After providing some specific reasons why the factor favored the state, Rehnquist concluded his paragraph:
It also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.
Period. No citation, just “it seems to me.” And that is why, when a court (or a brief) says something that sounds a little nuts, you should trace back its citations. This seems to rely on whimsical dicta by a single justice. I am disappointed that Judge Haynes, who is a sharp lawyer, signed onto this crap.
And ya gotta love how Roberts trimmed that Rehnquist quotation: “[A]ny time …” sounds better than “It also seems to me that any time ….” Roberts knew just what he was doing there: turning dicta into a holding, if one can even speak of a “holding” in a circuit-justice op.
(Also, my prejudice against judges who relegate citations to footnotes, as if one’s authorities were merely a stylistic impediment, is not exactly diminished by Owen here.)
… The application to Justice Scalia for a stay, which presumably is doomed because it’s aimed at Justice Scalia (our circuit justice here in the 5th Circuit), doesn’t engage in the above quibbling, but has this to say:
But this Court has never held that a state’s interest in enforcement of its laws itself is sufficient to tip the balance of harm in the state’s favor. See, e.g., Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 1334 (1980) (Powell, J., in chambers) (vacating Fifth Circuit’s stay and reinstating district court’s injunction of Texas statute); cf. Maryland v. King, 133 S. Ct. 1, 2-3 (2012) (Roberts, J., in chambers) (state showed concrete, irreversible effects beyond lack of enforcement of statute); New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers) (same). If it were, then no plaintiff would ever be able to obtain a preliminary injunction against enforcement of a state statute.
They also drop a footnote:
See also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006) (the government “has no legitimate interest in enforcing an unconstitutional ordinance” and suffers no injury from its injunction); Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (finding it “questionable” whether the City “has any ‘valid’ interest in enforcing [an] Ordinance” likely to be found unconstitutional).
That’s the catch, but then, the Owen panel claimed that the statute was constitutional, so this element (as so often in these analyses) seems to collapse into the merits question. Tho in TBA’s humble view, if you’re conducting the analysis so that one factor collapses into another, then either your case presents some unusual facts, or you’re doing the analysis wrong.
… Scott Lemieux correctly observes that this stunt by Roberts was very similar to what he did with Northwest Austin in Shelby County – elevating dicta to holding by the magic of citation. I would’ve been afraid to try that out in a brief and set myself up for a slapdown by opposing counsel; perhaps it’s a good rule for judges not to resort to tricks that an appellate advocate would blush at. But this is all about power, not ethics.
… UPDATE 10/1/2014: Over at the Volokh blog, veteran commenter Loki13 points out perhaps the most glaring problem with this bogus test:
“Any time a law a legislature is entitled to enact ” – Um, not to put to fine a point on it, but isn’t that likelihood of success on the merits?
The question-begging jurisprudence of the Rehnquist & Roberts Court.