The strange case of the superfluous sentence

Some sentences reproach without a single accusatory word. “The captain was sober today” impugns by implication. The officer who logs this superfluous statement damns the captain further with the surrounding entries that omit it.

Here’s another: “The denial of the application is not a ruling on the merits of the legal issues presented in the litigation.”  That’s a new one for us, though collectively we’ve been studying and teaching about the U.S. Supreme Court for 40 years. 

The Supreme Court squeezed that sentence between four others to deny a stay in South Carolina v. Doe on Sept. 10. The anonymous plaintiff is a transgender teen who wants to use the boys’ bathroom at school. Last year, this led to a day’s suspension and threatened expulsion. So at the start of this school year, Doe sued. The complaint alleges that South Carolina’s bathroom law dictating use by sex “at the time of birth” violates the U.S. Constitution’s equal protection clause and federal civil rights legislation.

The U.S. Court of Appeals for the 4th Circuit – traditionally among the more conservative courts of appeals – ordered South Carolina to allow Doe to use the boys’ bathroom while litigation proceeds. South Carolina sought emergency relief from a ruling that, unlike controversial nationwide injunctions, Doe’s lawyers noted “only applies to John.”

The Supreme Court’s minimalist order denied South Carolina’s application to put the 4th Circuit’s injunction on hold. That means John Doe can use the boys’ bathroom while the legal process follows its course. A victory of sorts, perhaps, but who knows? The Supreme Court gave no explanation for its order. That’s the court’s practice in such preliminary matters: no judicial opinion, no legal reasoning, not even an attribution of authorship to any justice. The norm is to keep it brief.

But if brevity is the soul of wit, why insert – at this political moment, in this controversial case – the sentence that “[t]he denial of the application is not a ruling on the merits of the legal issues presented in the litigation”?

Nobody needs this instruction. Certainly not the lawyers and court-watchers who peruse these unsigned “miscellaneous orders” on the court’s emergency docket. Everybody involved knows full well that such an order, in a pending case, is not the final word. Not even close, given that no briefing or oral argument has occurred. Tracking the Trump administration’s extraordinarily proliferating requests for such preliminary action, we can recall no sentence exactly like this in any other emergency order.

So why say what doesn’t need saying?  Who is the audience?  And why now?

One reason could be that this surplus sentence might have been the price for a justice’s vote to deny the application and keep Doe’s bathroom habits beyond state control … at least, for now.  The last sentence of the order states that Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would grant the application. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson hardly needed encouragement to deny it, thus protecting Doe temporarily from further state action. They dissented last term in United States v. Skrmetti, which upheld Tennessee’s ban on certain medical treatments for transgender youth.

That leaves Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. At least two of them must have voted to deny the state’s application and in favor of Doe, which required five votes. 

The chief justice wrote the opinion in Skrmetti, reasoning that the law did not classify based on transgender status. Kavanaugh joined that opinion without further comment.  Barrett, however, wrote that she would have gone further to declare that transgender people do not receive any heightened protection from the equal protection clause. 

Could one or more of them have felt the need to (at least temporarily) rule in favor of Doe but “virtue signal” his or her reluctance to go any further than this short reprieve?

Perhaps the message was sent because of a similar case. On July 3, the court announced that it had decided to hear West Virginia v. B.P.J. In that case, the justices will decide whether the equal protection clause or a federal statute prohibits the state from designating, or even offering, public school sports teams according to sex at birth. In a divided ruling, the 4th Circuit had also ruled for that transgender student. Was this sentence a shot across the 4th Circuit’s bow?  If so, this shot would seem to suggest something like the following: While the outcome of South Carolina’s emergency application might favor John Doe, this should not be construed as favoring transgender litigants (or interests) there, in West Virginia, or anywhere else. 

But this curious and unnecessary sentence, in the earliest stages of John Doe’s case, might be viewed in an even less salubrious light. In the last nine months, the court has issued 20 similar emergency orders temporarily allowing legally contestable Trump administration policies to continue. Wouldn’t critics of those similarly unsigned orders, which are likewise devoid of any explanations, have appreciated a similar sentence making clear that these government wins implied nothing about their future ruling?

Just two days prior to denying the stay in John Doe’s bathroom case, for example, the court, in another four-sentence ruling, granted a stay the government had sought of a lower court’s order that prohibited federal agents from conducting immigration raids on the basis of race, language or accent, the type of job people seek, or the location where they seek it. Such factors or their combination have been held insufficient to satisfy the Fourth Amendment in many other contexts, as Sotomayor’s dissent from the stay grant (joined by Kagan and Jackson) makes clear in 21 pages of vivid and detailed legal analysis. 

An anxious public fearful of mass arrests by masked agents searches in vain for the same reassurance the court offers armchair opponents of John Doe’s bathroom choice. The court could similarly have noted that allowing those immigration arrests to continue “is not a ruling on the merits” in that case.  But those worried that they or their loved ones risked arrest based on the language they spoke, the accent with which they spoke it, and the places they congregated for work (a group that Kavanaugh’s clinical concurrence estimated to extend to “[m]any millions”) will find no such words in the court’s unsigned grant of the government’s application. 

The court’s silence speaks volumes to those millions, and many more who might reasonably worry about the extension of sweeps based on such generalized hunches.  Reassurance is selective, and only for some. It was apparently more important to let those concerned about John Doe’s bathroom habits know that the Supreme Court of the United States has not yet issued its final word on the matter.