The Volokh Conspiracy

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Breaking: Fifth Circuit Panel Grants Stay Pending Appeal in U.S. v. Texas, Schedules Arguments In December For WWH Panel

Does DOJ now go to the shadow docket?


This evening, the Fifth Circuit granted a stay pending appeal in United States v. Texas. The order is a single paragraph:

The emergency motions to stay the preliminary injunction pending appeal are granted for the reasons stated in Whole Woman's Health v. Jackson, 13 F.4th 434 (5th Cir. 2021), and Whole Woman's Health v. Jackson, 141 S. Ct. 2494 (2021). Judge Stewart dissents. The appeal is expedited. The Clerk will schedule this case for oral argument before the same panel that will hear the appeal in Whole Woman's Health v. Jackson, No. 21-50792.

This result was not surprising. The United States overcame some of the jurisdictional defects that were present in WWH v. Jackson, but encountered many of the same problems. Now, both cases will be scheduled for oral argument in December.

Or, the Department of Justice can seek an emergency stay from the Supreme Court. Stay tuned.