BREAKING: On a 5-4 vote, the Supreme Court denies relief to plaintiffs challenging Texas #SB8, allowing it to remain in effect for now. Chief Justice Roberts joins the Democratic appointees in dissent.
Here is the statement from the Court, which has no author and is not listed as per curiam.
Here is Roberts’ dissent, joined by Breyer and Kagan, which focuses on the “unprecedented” type of law at issue here.
Here is Breyer’s dissent, joined by Sotomayor and Kagan, which focuses on Texas’s attempt to end-run their unconstitutional law around the courts by having private enforcement.
Here is Sotomayor’s dissent, joined by Breyer and Kagan, focused on the pre-enforcement gamesmanship by Texas: “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”
And, finally, here is Kagan’s dissent, joined by Breyer and Sotomayor, which focuses on the shadow docket, concluding that its “decisionmaking” becomes “more unreasoned, inconsistent, and impossible to defend” every day.
So, the unnamed majority (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) say the decision has nothing to do with the constitutionality of the law — but also make clear that states can avoid pre-enforcement litigation by allowing only for private “vigilante” enforcement.
That was too much for Roberts, but he was unable to get *any* of the other conservatives — not Kavanaugh, not Gorsuch, no one — to join him in merely casting a fifth vote to put the law on hold while the courts sort this “unprecedented” law out.
Seems like a good time to reread my April 20 MSNBC column about Roberts and the bill to expand the Supreme Court: msnbc.com/opinion/why-su…
The #SCOTUS 5-justice right-wing majority tonight actually wrote that it was a decision between "serious questions regarding the constitutionality" of #SB8 and "complex and novel antecedent procedural questions on which they have not carried their burden," and chose the latter.
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Breaking: Booksellers' challenge to Texas's book-ban regime succeeds at the Fifth Circuit.
Today, the full Fifth Circuit announced that the far-right judges of the court LOST a vote for rehearing en banc 8-9 after a 3-judge panel had previously upheld the dist ct's injunction.
There is highly questionable action from the Fifth Circuit this weekend, flagged to me by @steve_vladeck. On Saturday, the Fifth Circuit issued "a temporary administrative stay," allowing Texas S.B. 4 — the challenged Texas immigration law — to go into effect in 7 days.
Here's my thread on the preliminary injunction ruling from Feb. 29:
BREAKING: Fifth Circuit holds that fed'l emergency room protections (EMTALA) do not mandate that physicians provide abortions when that is the "stabilizing treatment" needed, upholding an injunction issued in a lawsuit brought by Texas. More to come: lawdork.com
For background on this issue (while I'm reading and writing), here's some a post relating to the still-pending SCOTUS stay application filed by Idaho in the inverse EMTALA litigation, where DOJ sued Idaho: lawdork.com/i/139439910/th…
BREAKING: Supreme Court will NOT hear case over Washington's conversion therapy ban, over the objection of Thomas, Alito, and Kavanaugh. Thomas and Alito write.
Supreme Court also DENIES RFK Jr.'s request to intervene at SCOTUS in Murphy v. Missouri, the case over Biden administration social media influence out of the Fifth Circuit. Thomas notes his dissent.
BREAKING: On a 2-1 vote, the 11th Circuit DENIES Florida’s request that it be allowed to enforce its anti-drag law against everyone in the state except the plaintiffs during the appeal.
Jordan and Rosenbaum, both Obama appointees, hold that the district court did not abuse its discretion in granting an injunction prohibiting all enforcement of the ban, given its underlying finding that the law is likely overbroad and this likely facially unconstitutional.
Brasher, a Trump appointee, dissents and would grant a partial stay, finding the injunction to be, itself, overly broad to achieving the goal of protecting the plaintiff’s rights.