The Volokh Conspiracy
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Also today, the Supreme Court entered an order in Whole Woman's Health v. Jackson:
Petitioners' motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondents are directed to file a response to the petition on or before noon on Thursday, October 21, 2021.
In short, Texas will have to file two important briefs by Thursday. Why the urgency? Whole Woman Health's motion to expedite has been pending for since September 23. Indeed, Lyle Denniston complained that the Court wasn't acting promptly enough! But today the Court grants WWH's motion to expedite shortly after DOJ's emergency application was granted. What gives?
Tomorrow will be 3 weeks since Texas abortion clinic asked SCt to expedite its petition challenging 5th CA handling of SB 8 (Texas ban on abortions at 6 wks). Two proposed response dates passed with no action. What's the problem?
— Lyle Denniston (@lylden) October 13, 2021
Here, I will engage in some SCOTUS Kremlinology, which is terribly unreliable.
First, expediting consideration of a motion for certiorari before judgment takes five votes. But once the motion is expedited, only four votes are necessary to grant. Why were there five votes to expedite in WWH II? I think it is safe to assume that the four dissenters from WWH I voted to expedite. Thus, either Kavanaugh or Barrett provide the fifth vote. (Circuit Justice Alito could have unilaterally granted the motion to expedite, but I think that option very unlikely–especially given the delay). Does that breakdown mean that Kavanaugh or Barrett would vote to grant cert, or rule for WWH? Not necessarily. Why? The answer turns on the timing of DOJ's strategy.
Second, the SG filed an emergency application for a stay, but asked the Court in the alternative to construe the application as a petition for certiorari before judgment. By its very nature, the emergency application will be considered on an expedited basis. There is no need to garner five votes to expedite. Thus, four Justices could grant certiorari before judgment in U.S. v. Texas, and add the case for review this term. It would have been futile for the conservatives to vote against WWH's motion to expedite. There were already four votes to hear DOJ's case this term. The conservatives cannot keep DOJ's case off the docket. The progressives and Roberts were going to force this issue. But Kavanaugh and Barrett can call their bluff. Given this posture, it makes sense to expedite consideration of both cases to give the Court the fullest menu of options to decide the validity of S.B. 8. Then decide all the cases on the merits.
Third, what about DOJ's motion for a stay? Even if there are five votes to expedite the WWH appeal, I do not think there are five votes to grant a stay in U.S. v. Texas. DOJ faces many of the same problems that WWH faced last month. True enough, DOJ's appeal eliminates the sovereign immunity issue. But the Court's per curiam order did not even mention sovereign immunity. (Roberts's dissent did). Rather, the Court explained that "federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves." It is not "clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit." There are very weak grounds for a stay. Moreover, DOJ has deviated from DOJ's longstanding position on equitable jurisdiction. To find equitable jurisdiction here would open the federal courthouse door to countless challenges to federal and state action. I doubt the Court wants to blow up equitable jurisdiction jurisprudence for this single case.
Fourth, I have long thought that the Court would hear both U.S. v. Texas and WWH v. Texas this term, on the rocket docket, rather than the shadow docket. The Court could, in theory, super-expedite proceedings so U.S./WWH are heard in December along with Dobbs. That approach would allow the Justices to decide all of the cases at the same conference. Or, the Court can hear Dobbs in December, and U.S./WWH in January or February. All three cases could be decided by the end of June. But S.B. 8 will remain in effect for the interim.
Fifth, it is possible five or six Justices vote to vacate the Fifth Circuit's stay in U.S. v. Texas, thus reimposing the district court's injunction. Does that mean there are five votes to affirm the District Court? Historically, when the Roberts Court grants a stay, it reverses the lower court. Also, Justices who grant a stay may "lock themselves in" on the final disposition. (This anchoring effect is often used to criticize the shadow docket). However, this case may be different. Under current abortion jurisprudence, S.B. 8 is unconstitutional in many regards. But if the Court overrules–or modifies–Roe and Casey, then S.B. 8 becomes constitutional in many other regards. Thus, the Justices could conclude that putting S.B. 8 on hold pending Dobbs may make sense. I think DOJ's likelihood of success on the merits is 0%, given the lack of an equitable cause of action. Still, I do not think the granting of a stay spells certain defeat for Texas.
This Term will be one for the ages.