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Steve Vladeck

@steve_vladeck

Mar 26

1/10: For all of the focus on its substantive rulings, some of the Fifth Circuit's most indefensible behavior comes in technical, procedural contexts.

A recent example involves the Liberty Energy case, one of nine suits challenging the SEC's new investor climate-disclosure rule.

2/10: Under 28 U.S.C. § 2112, if a new federal regulation is challenged within 10 days in at least two courts of appeals, the Judicial Panel on Multidistrict Litigation holds a lottery—and consolidates those challenges before one of the courts of appeals in which they're pending.

3/10: § 2112 was triggered here—because challenges to the SEC rule were filed in six different circuits. Thus, there was only a 1/6 chance that the Fifth Circuit would "win" the lottery—and keep jurisdiction over the Liberty Energy case (or the others filed in the Fifth Circuit).

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Steve Vladeck

@steve_vladeck

Mar 20

#BREAKING: #SB4 is blocked again.

A majority of the Fifth Circuit panel hearing argument on Texas's stay application *tomorrow morning* just issued an order "dissolving" the "administrative stay" that a different panel imposed on March 2. So the injunction goes back into effect.

Here’s the order and Judge Oldham’s dissent:

Here's my best guess:

The panel had not been planning to move any faster until it was provoked by Justice Barrett's concurring opinion this afternoon.

Then, it agreed to at least look like it was moving faster.

Then, two of the three judges decided to *actually* move faster.

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Steve Vladeck

@steve_vladeck

Feb 23

1. A quick #thread on where things stand with former President Trump's application to #SCOTUS to keep the January 6 prosecution on hold.

First, we expect whatever the Court does to be a "miscellaneous order." Such an order can theoretically come at any time and without warning.

2. Second, although the justices *are* having a regularly scheduled Conference today, chances are that the Court has already made whatever decision it's going to make—and we're just waiting for the disposition.

So why has it taken 2 weeks so far? It's *impossible* to know, but:

3. My best guess is that one of two things has happened:

Possibility 1 is that the Court has voted to *deny* the stay, and some number of justices are writing separate opinions respecting that result (concurrences/ "statements"/dissents).

Two weeks is *not* that long for that.

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Steve Vladeck

@steve_vladeck

Jan 4

I may be an outlier, but I don't see a jurisdictional problem in Trump's interlocutory appeal of Judge Chutkan's rejection of immunity in the 1/6 prosecution.

Assuming for the sake of argument that there *is* immunity, it wouldn't mean much if it could only be raised post-trial.

And although #SCOTUS has held that the "collateral order doctrine" is more limited in the criminal context than in the civil context (e.g., Midland Asphalt), the Court has also been clear that *constitutional* immunities from suit are one of the few contexts in which it applies.

All that's left is the argument that this is different because any immunity, if it exists, isn't *expressly* mentioned in the Constitution. But *if* the Constitution creates an immunity from suit, do we really think interlocutory appellate JX turns on how specifically it does so?

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Steve Vladeck

@steve_vladeck

Aug 9, 2023

In fact, since Does 1–3 v. Mills, Barrett has publicly voted to grant or vacate *14* stays in cases in which at least one Justice publicly dissented.

Of the 8 Josh … neglects, 7 came from *other* circuits; the 8th stayed a decision that a *moderate* Fifth Circuit panel hadn’t.

In other words, the remarkable pattern that Josh purports to divine from the selective subset of orders on which he focuses only exists *because* he is ignoring virtually all of the other orders that disprove the existence of such a pattern.

The 14:

1. Crow
2. NFIB
3. Ohio v. DOL
4. Milligan
5. Caster
6. Navy SEALs
7. American Rivers
8. NetChoice
9. Ardoin
10. Hamm v. Smith
11. AZ v. Mayorkas*
12. Danco
13. FDA
14. Vanderstok

* — Josh accounts for this by asserting that it doesn’t count if the Court granted cert.

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Steve Vladeck

@steve_vladeck

May 16, 2023

1. To mark today's publication day for "The Shadow Docket," I wanted to write a #thread not about the book, but about gratitude—to *everyone* who helped to make this day a reality, and to whom I am so deeply and profoundly grateful.

Here goes:

@AliaHanna

2. At the top of the list of people without whom there wouldn't be a book are my fantastic agent, @AliaHanna, and my amazing editor, @emmafberry.

From the beginning, both Alia and Emma understood not just what I hoped to accomplish in the book, but how to make it happen.

@doree

3. I'm also grateful to my sister-in-law, @doree, who in addition to being a wonderful writer of her own and the person who introduced me to Alia, has also been an incredibly patient correspondent and soother of nerves all the way through this process.

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