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.

Comments

[not guilty]

Remarkably absent is any comment on the likelihood of success on the merits. Why am I unsurprised?

[Gandydancer]

There's no reason to repeat the obvious fact that Pitman's trash opinion is a no-hoper given that granting the stay with so little comment sufficiently indicates the opinion of it held by the panel.

I do recall that you're the one who insisted that the even shorter message accompanying the temporary stay somehow indicated that the panel was going to endorse Pitman after a brief pause to write up that opinion. The delusions are strong in you.

[not guilty]

I didn't suggest what the disposition of the stay motion after full consideration would be. I merely pointed out that the administrative stay was of temporary duration pending further proceedings.

It is telling that the only jurist so far to consider the merits of SB8 has opined that Roe and Casey plainly preclude its prohibitions. There is no intellectually honest way to reconcile SB8 with Roe and Casey, and I am unsurprised that the Fifth Circuit panel didn't even try.

Result oriented jurisprudence at its worst.

[Gandydancer]

I have of course already pointed out that SB8 explicitly reconciles itself to Casey by saying that neither damages nor costs nor injunctive relief can be awarded unless Casey is overturned. But you keep dishonestly pretending that this hasn't been pointed out to you.

[not guilty]

You are just plain wrong about that. A Texas court ruling in favor of a plaintiff under SB8 is obliged to award not less than$10,000 in statutory damages, notwithstanding Casey.

Your lie does not become true by means of constant repetition.

[Gandydancer]

The law, SB8, explicitly recognizes the undue burden test in Casey as a complete defense so long as Casey is not overturned. So a court cannot currently properly award that $10,000. You, of course, will either lie to deny this or remain determinedly ignorant of that fact. For the convenience of any non-Team Stupid observer, here is the law: https://legiscan.com/TX/text/SB8/id/2395961
The section in question is 171.209(b).

Funny how I can prove my "lies" are true, while you can only wave your arms about determinedly but helplessly while being unable to defend your actual ones.

[Lee Moore]

They state their reasons :

The emergency motions to stay the preliminary injunction pending appeal are granted for the reasons stated in Whole Woman's Health v. Jackson

In which SCOTUS refers to the likelihood of success on the merits thus :

To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest……In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.

The 5th Circuit could have copied all this out - including the bit I have elided, but why should they bother ?

[not guilty]

That was a rote recitation of the four factor test for a stay pending appeal. It is not an analysis of the four factors. Least of all is it any evaluation of the likelihood of success on the merits, about which SCOTUS expressed doubt.

[Gandydancer]

Your claim that it is any way "remarkable" that the 5th Circuit panel didn't address the merits of Pitman's egregious injunction (including the novel and implausible and actually remarkable remedy he purported to be able to impose) has just been refuted.

As a member in good standing of Team Stupid you are of course unwilling to admit this.

[Sidney r finkel]

Wow, what a surprise.

In other unanticipated news the sun came up this morning, the NFL continues to support racist owners and management and Donald Trump said that the 2020 election was 'stolen' and that he won.

[John F. Carr]

"Judge Stewart dissents."

I heard somebody let a liberal onto the 5th Circuit. Is Judge Stewart that guy?

Is the panel set to hear the case the same one that already ruled against the challenge in _Whole Woman's Health_, or was that a motions panel distinct from the merits panel?

[Lee Moore]

It's a different panel.

Which raises the point about the odds for and against getting a suitable panel. The 5th has 12 R appointees and 5 D appointees, and we may assume for simplicity that the judges will all follow the party line*. And we will also ignore senior judges and by designations - which shoudn't affect the odds much as the seniors tilt R about as much as the currents.

The odds on getting a panel with two Ds in it are about 19%. Which isn't that bad considering the large R majority. A 19% chance means that if you draw three panels you have a 50-50 (strictly 47-53 but whatev) chance of getting a D majority panel in one of them, and we've just had two R majorities in a row on SB8.

So you really don't have to start too many cases to get a favourable panel. So the strategery should be to keep bombing the Texas District Courts - and you can certainly pick the right ones there - with cases.

*Though in practice while it is overwhelmingly likely nay certain that the D appointees will all follow the party line, some of the R appointees may break ranks, as the Chief Justice has already done on SCOTUS. So the odds of getting a favorable panel - ie an anti SB8 panel - are almost certainly better than 19%. Even a single R "defector" would bounce the odds up to 27%.

[not guilty]

The Fifth Circuit invalidated a fifteen week ban in Dobbs. The courts which have refused to enjoin SB8 have all run like a scalded dog from addressing the merits.

[John F. Carr]

The "drown them in litigation" strategy does not produce independent outcomes. The first merits panel gets to set a binding precedent. As in this case, the first merits panel is more likely to be the second merits panel. And a blue panel opinion will be followed by a rehearing en banc, while a red panel opinion will leave a bunch of judges relieved that they don't have to get involved. I wouldn't want to get involved if I could avoid it because I don't have a good solution. The likely outcomes are a legal reign of terror involving lawsuits against people who gave a woman of childbearing age directions to a medical facility, or a legal reign of terror involving a newly minted jurisdiction of federal judges to right any perceived injustice and throw the whole state in prison for contempt. ("Suo motu" jurisdiction in some of the other relics of the British Empire.)

[Gandydancer]

Fear of a "legal reign of terror involving lawsuits against people who gave a woman of childbearing age directions to a medical facility" are (desiresd fund raising impact aside) hysteria. It is almost impossible that any reversal of Casey by SCOTUS will go that far. And even if SCOTUS somehow missed a possible impact of whatever minor loosening is necessary for the pro-abortion bloc to get a 5th vote the TX courts would of course find a way to not define assistance as broadly as you propose.

You also exaggerate the impact of "legalizing" Pitman's proposed remedy, but it would indeed be bad as well as scandalous.

[Gandydancer]

A 19% chance means that if you draw three panels you have a 50-50 (strictly 47-53 but whatev) chance of getting a D majority panel in one of them, >>and we’ve just had two R majorities in a row<< on SB8.

It's not clear that you are saying otherwise, but the idea that with fair dice any number of sevens in a row increase the chance of the next throw either being or not being a seven is a (common) superstition. The pro-aborts still need three MORE shots to get to 19% (ignoring your other caveats).

[Bubba Jones]

So... back to SB8 being in force until an actual case is heard?

[Gandydancer]

Yes.

Though its non-political impact is almost entirely ly via abortionist hysteria.

[LawTalkingGuy]

The stay is granted based on the reasons set forth in a non-precedential one page opinion in a case addressing completely separate procedural issues? Man that is some quality legal analysis.

[Gandydancer]

Better than yours. See Lee Moore's explanation above.

[LawTalkingGuy]

His explanation is just as truncated.

If you or I or anyone turned that order in as an answer on an exam we would receive very very low scores. You know it. I know it. The Fifth Circuit knows it too, they just don’t care because the fix is in and they don’t need to do any real work.