Thread by @RMFifthCircuit

Ok. Let’s focus on where this litigation goes now, since I add no value on the Scotus analysis at this point. As y’all know, this case is currently pending in a Texas district court and CA5, which is sitting on a motion that would let the district judge proceed. 1/

https://twitter.com/steve_vladeck/status/1433286859707363329

Assuming the Fifth Circuit remands the case to the district court (not a done deal) can that judge issue a injunction against the law? Maybe. But this sentence in the Court’s opinion, such as it is, is difficult. Is that also a finding that the burden can’t be met below? /2

I don’t really know the answer to that question. But at least it would worry me if I were a district judge inclined to grant an injunction. And SCOTUS goes on to say that it envisions challenges in state court. Which again makes me think the majority is waiting for /3

A post-enforcement challenge? Which may indeed come soon.

So although this opinion *says* it’s not expressing any opinion on the case as a whole, it may be dooming the only live federal challenge. /4

But as @lsepper points out, maybe the court sees a distinction between it granting an injunction and the district court granting an injunction in terms of burden. No one says either way, of course. /5

So maybe the way this ends up in front of the Court is that a state trial judge grants an injunction and we head up through the Texas Supreme Court, rather than through the federal courts. Or someone sues tomorrow under the statute and then we’ll be off. /6

I also note that the Court seems to agree that Dickson can’t be the basis of any relief either, because he says he won’t sue anyone. That really throws a ratchet into the works of the federal case, which right now depends on the claim against Dickson. /7

I’m wondering whether the plaintiffs abandon this case, which is now procedurally gunked up and in front of a difficult panel for them, and look for another way to present the case. Because I don’t think this one is going to work.

Anyway, just late night speculations.