Breaking: DOJ Will Appeal S.B. 8 Case to Supreme Court

There is a risk taking this case to the shadow docket.

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DOJ Spokesman Anthony Coley released a short statement:

"The Justice Department intends to ask the Supreme Court to vacate the Fifth Circuit's stay of the preliminary injunction against Texas Senate Bill 8."

There are risks here. The Court could hold, in a short shadow docket order, that the United States lack an equitable cause of action. There is precedent for such an order. In 2019, the Supreme Court granted a stay in Trump v. Sierra Club. The majority observed that the Plaintiffs lacked a cause of action:

Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005.

(Seth Barrett Tillman and I wrote about the order here.).

The Supreme Court could turn away DOJ's application in a single sentence. Ironically, that holding would actually help the Justice Department in the long run. Usually, DOJ argues in favor of a narrow scope of equitable jurisdiction. But here, the Biden Administration has reversed that position.