The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, Whole Woman's Health filed an application to issue the judgment, forthwith. The application was directed to Justice Alito, who is the Circuit Justice for the Fifth Circuit. And they requested relief pursuant to Supreme Court Rule 45.3. (I wrote about the nuances of that rule here). Rule 45.3 doesn't precisely spell out how the parties can request the mandate to issue early. But Rule 45.3 incorporates Rule 45.2, which provides, in part:
In a case on review from a state court, the mandate issues 25 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it issue sooner.
This rule, which also applies to federal courts, suggests that a request be made to to expedite the issuance of the mandate to "the Court or a Justice." I don't think Rules 21 and 22 requires the request to be made to an individual Justice. The abortion clinics chose the latter approach, addressing the application to Justice Alito.
I don't understand this choice. Wouldn't it make more sense to refer the application to the full Court, given that the Justices had decided the case together? Indeed, the clinics could have potentially garnered a dissent that explains what happens on remand--specifically, the Fifth Circuit should remand the case to the District Court, rather than certifying to the Texas Supreme Court. But the clinics chose Circuit Justice Alito. But he didn't resolve the issue! Justice Gorsuch did.
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the application to issue the judgment forthwith is granted, and the judgment is issued to the United States Court of Appeals for the Fifth Circuit.
And Gorsuch did not refer the matter to the full Court. Though, presumably, he checked with the other members.
The Court may have some hitherto-unknown internal practice by which a single-Justice application, that arrives after the case is decided, is directed to the Justice who wrote the majority opinion. I cannot recall ever seeing a one-justice order issued by someone who was not the circuit justice. If anyone can think of examples, please email me.