The Supreme Court’s shadow docket has faced criticism again, this time for its handling of Trump v. Orr. The case involved a preliminary injunction against a rule requiring that passports reflect an individual’s sex at birth. The court’s decision to stay the injunction was finalized with a short opinion stating the government’s likelihood to succeed on the merits.
As noted by Erwin Chemerinsky, the court’s approach did not adhere to the established principles for granting a stay as outlined in Nken v. Holder. Notably, the court did not require the government to demonstrate a strong likelihood of success. Instead, the burden was shifted to the plaintiffs, failing to establish animus and a likelihood of success on their claims.
The case also raised questions regarding the irreparable harm claimed by the government. Dissenting opinions, such as that from Justice Ketanji Brown Jackson, highlighted a lack of explanation for how the government’s position is harmed by passports representing current gender identities. The Supreme Court’s decision did not adequately balance the hardships, overlooking findings of potential harassment and violence against transgender individuals using gender-incongruent passports.
This recent decision prompts questions about the court’s inclinations on the shadow docket and its sensitivity towards marginalized groups. For more details, you can read the full analysis on Scotusblog.