The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

SCOTUS Does Not Decide S.B. 8 Cases

The longer this delay lasts, the less likely that Texas will lose.


This morning, nearly 3,000 people were glued to SCOTUSblog, waiting for the S.B. 8 cases. Instead, we got Rick Roll'ed.

Chief Justice Roberts wrote the majority opinion in Mississippi v. Tennessee. This SEC match involves something about aquifers. "Layers of rock, clay, silt, sand, and gravel exist below the Earth's surface," the Chief tells us.

As a general rule, the longer the abortion cases stretch, the better things look for Texas. If the Court was going to grant some interim relief, it could have put out a short stay order, followed by a lengthy opinion. But we are now three weeks from the S.B. 8 argument with silence.

A decision before Thanksgiving now seems unlikely. The Court could issue another decision on Monday, November 29. Keep in mind that Dobbs will be argued on Wednesday, December 1. Mississippi, still smarting from its loss on aquifers, will try to defend its abortion law. I'm sure a win in Dobbs will make up for the loss in the original jurisdiction case.