Why Did Only Justice Gorsuch Sign The Remand Order in WWH v. Jackson?

Gorsuch is not the Circuit Justice for the 5th Circuit. The process is unclear.

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.

Comments

[Scribe]

"You wrote the original majority opinion. You therefore own all the rest."

As in "you made the mess. You clean it up."

[Chris Upchurch]

Justice Alito is assigned to the Fifth Circuit. That may explain why the clinic's initial application was directed to him.

[Union of Concerned Socks]

I blame Covid

[William Linkhaw]

Trump v. Vance, just last year. The case was on cert to the 2nd Circuit (whose Circuit Justice was Ginsburg), but the motion was granted by Roberts (who wrote the majority opinion). Not so rare after all.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a17.html

[Noscitur a sociis]

You can't expect Prof. Blackman to actually look into this stuff before posting about them. After all, the handful of times he did try to do research ahead of time, he made it clear that his skills in that area are very much South Texas College of Law caliber. Much better to get these takes out fast.

[The Turtle Dove]

First one I looked at: Kennedy issued Boumediene forthwith. (Circuit Justice for the 9th at the time, I think, but not sure.)

https://www.supremecourt.gov/search.aspx?filename=/docketfiles/07a1011.htm

It seems logical that the author of a decision should handle a post-judgment application relating to the judgment; if the Circuit Justice is in the minority, they might theoretically even be able to retract a mandate under inherent powers. And the Rules seem to leave the Clerk a bit of latitude as to which Justice should get the application.

Of course, the real issue here is that remand to the Circuit allows the certified question that Gorsuch, J. was gesturing towards during the entirety of the opinion. (And that Roberts, CJ was frantically gesticulating towards in his concurrence.)

But a quick Google suggests that the 5th on remand simply sends the case to the panel, without any motions from the parties, which doesn't seem to leave any opportunity for concrete adversity and development of issues sufficient to certify a contested question of law to the highest court of the state. Just a thought after a quick Google; it's likely that wiser and cannier minds than mine have been long at work on the question.

Mr. D.

[ReaderY]

The less precedent you know, the more entitled you are to say that to your knowledge something is unprecedented.

It used to be that making a mistake like this would bother an ordinary journalist, and very much bother a law professor.