By voting to keep Mississippi's social media age-verification law in place even though he believes that it does violate the First Amendment, Justice Kavanaugh's opinion last Thursday bespeaks a flatly inconsistent approach to how he is voting on emergency applications.
Me in today's "One First":
173. Justice Kavanaugh and the Equities
Thursday's ruling in the NetChoice case appears to suggest that one of the key justices is either being inconsistent or completely hypocritical in how he is voting on emergency applications.
![SUPREME COURT OF THE UNITED STATES
No. 25A103
NATIONAL INSTITUTES OF HEALTH, ET AL. U.
AMERICAN PUBLIC HEALTH
ASSOCIATION, ET AL.
ON APPLICATION FOR STAY
August 21, 2025]
The application for stay presented to JUSTICE JACKSON and by her referred to the Court is granted in part and denied in part.
The application is granted as to the District Court's judgments vacating the Government's termination of various research-related grants. See Department of Ed. v.
California, 604 U.S.
_ (2025) (per curiam).
The
Administrative Procedure Act's "limited waiver of [sovereign] immunity" does not provide the District Court with jurisdiction to adjudicate claims "based on" the research-related grants or to order relief designed to enforce any "obligation to pay money pursuant to those grants. Id., at _ (slip op., at 2). And while the loss of money is not typically considered irreparable harm, that changes if the funds "cannot be recouped" and are thus
"irrevocably expended." Philip Morris USA Inc. v. Scott,
561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers). The Government faces such harm here. The plaintiffs do not state that they will repay grant money if the Government ultimately prevails. Moreover, the plaintiffs' contention that they lack the resources to continue their research projects without federal funding is inconsistent with the proposition that they have the resources to make the Government whole for money already spent.
The application is otherwise denied.](https://cdn.bsky.app/img/feed_fullsize/plain/did:plc:36eqtmzysqf7wsslczw4uxcd/bafkreiba5k3lggkqji4af6g7yjo7dwkg6xffvsbfvsvw4i3pjhyrioj3dq@jpeg)
