Samuel Bray | 10.8.2024 1:53 PM

The Court's argument this morning in Lackey v. Stinnie showed some fractures among the justices. My prediction is that there will be a majority in favor of the petitioners, though that is not a totally confident prediction: several justices were clearly in favor of the petitioners, a couple were in favor of the respondents, and the rest asked some questions of each side that did not clearly reveal their thinking.

But the basic reason for the prediction is that the argument took place on more or less formalist territory–a statute with a term of art, a set of precedents that focus the inquiry for attorneys' fees on final judicial action, the policy decisions to depart from the American Rule being made by Congress not the Court, and the characteristics of the preliminary injunction that distinguish it within the timeline of litigation. The terrain on which the discussion happened was not about how the Court can set optimal incentives for public interest litigation. And in this case the formalist terrain is friendly for the petitioner.

There were two strong points made in favor of the respondents. One is the recently unsplit circuits–the Fourth Circuit had a bright-line rule against fee-shifting after a PI, but now that it just reversed that rule en banc (in the case below), there is no circuit that clearly takes that position. One rejoinder to that is that the various tests used are a mess. But another is that most of the circuits can get it wrong–which is probably a lesson from yesterday's argument in Royal Canin USA. Still, a strong point for respondents is the lack of support in the courts of appeals.

The other point that seemed to carry some weight for the respondents was a hypothetical from Justice Jackson where someone sues today to be able to participate in a parade tomorrow, gets a PI, and then has gotten all the relief needed, because the parade is over. Is that plaintiff a prevailing party? Some of the reasons why the plaintiff might still care about the case came out at oral argument–an annual parade, a request for damages, a declaratory judgment. But several other points are worth making.

First, in the scenario described, the plaintiff would almost certainly not get a PI because of laches in waiting........

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