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7 Oct, 6 tweets, 4 min read
#BREAKING: In United States v. Texas (challenging the constitutionality of #SB8), Judge Pitman has issued a preliminary injunction temporarily barring enforcement of the controversial six-week #abortion ban by "the State" — *including* judges and clerks:

justsecurity.org/wp-content/upl…
Here's the injunction itself. It's a 113-page ruling, so bear with me. But this is a remarkable decision (and one that Texas will almost certainly immediately ask the Fifth Circuit to stay):
Judge Pitman on why he won't stay his ruling:
What happens next: Texas will ask the Fifth Circuit to stay the injunction pending appeal, and to issue an immediate administrative stay while they decide whether to issue a stay pending appeal. Whoever loses in the Fifth Circuit can then go to #SCOTUS for a stay/vacatur of stay.
In the interim, it's not clear whether providers will resume offering services. One of the many novel provisions in #SB8 provides that abortions performed while a preliminary injunction is in effect can *still* be a basis for liability if the injunction is later stayed/reversed.
Update: It looks like Judge Pitman has issued a corrected version of the opinion (so far as I can tell, just to delete a duplicative paragraph on pages 1 and 2).

Here's the revised ruling:

justsecurity.org/wp-content/upl…

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More from @steve_vladeck

Steve Vladeck Profile picture
6 Oct
"You just let it sit there?," asks a Justice on a Court that has agreed to hear exactly *one* #GTMO appeal since ruling in 2008 that the federal courts must resolve these cases — and dismissed that case without deciding it? It's almost like they ... haven't been paying attention.
Here's an article from ... 2011 ... on the various procedural hurdles and roadblocks that the D.C. Circuit had already articulated to bog down the #GTMO detainee litigation:

scholarship.shu.edu/cgi/viewconten…

Suffice it to say, matters haven't improved much in the ensuing ... decade.
In case you're wondering, the *one* #GTMO appeal that #SCOTUS agreed to take up since Boumediene was Kiyemba v. Obama — about whether those detainees who *won* their habeas petitions had a right to release *into* the United States.

Here's how that ended:

supremecourt.gov/opinions/10pdf…
Read 4 tweets
Steve Vladeck Profile picture
15 Sep
In DOJ's suit against TX challenging #SB8, Judge Pitman has scheduled a preliminary injunction hearing for Oct. 1.

He has *not* granted a TRO, so the ban remains on the books for now.

That's actually *very* savvy to me, because it stops TX from going right to the Fifth Circuit. Image
If he issued a TRO, TX could ask the 5th Cir. to review the TRO immediately (via a writ of mandamus), and to stay the TRO (and all district court proceedings) pending that review. This way, there's time to fully brief and decide the injunction request *before* the case can go up.
Update: DOJ, is asking Judge Pitman to rule on its request for a temporary restraining order *before* ruling on the preliminary injunction, and has proposed a hearing for next Tuesday (9/21).

(In other words, DOJ is pressuring the court to move faster):

justsecurity.org/wp-content/upl…
Read 5 tweets
Steve Vladeck Profile picture
7 Sep
1. Now that a lot more people are paying attention to #SCOTUS's "shadow docket," here's a quick #thread on what, exactly, people *mean* when they use that term — and why, even before Wednesday's #SB8 ruling, it's been a source of increasing controversy over the past few years:
2. The term was coined by @WilliamBaude in 2015 as a catch-all for just about everything #SCOTUS does *other* than decide the big "merits" cases it hears each Term — in which it receives multiple rounds of briefing; holds oral argument; and hands down lengthy, signed opinions.
3. The "merits" docket includes only ~70 cases per Term. As @AdamSFeldman has shown, there's been a sharp decline in these cases in recent years. During its October 2019 Term, the Court handed down 53 decisions in such cases (the fewest since 1862); this Term, there were only 56.
Read 15 tweets
Steve Vladeck Profile picture
4 Sep
I had missed this, but there’s a new cert. petition from Lisa Blatt asking #SCOTUS to overrule its 1971 decision in Bivens — and make it absolutely impossible for victims of constitutional violations by federal officers to sue those officers for damages:

supremecourt.gov/DocketPDF/21/2…
Last year, in Hernández v. Mesa (in which I represented Hernández), a 5-4 majority refused to recognize a *new* Bivens claim, but only two of the Justices would’ve discarded Bivens altogether, leaving it in place for ordinary constitutional violations by law enforcement officers.
If the Court takes the additional step of overruling it, that would erase even the specter of potential liability for constitutional violations by federal officers — and, thus, the deterrent effect on which the Court had defended the doctrine for at least the last 27 years.
Read 4 tweets
Steve Vladeck Profile picture
2 Sep
Just a reminder that back in April, the very same 5-4 #SCOTUS majority flat-out *ignored* procedural obstacles to issue an emergency injunction that blocked California's #COVID-based restrictions on in-home gatherings based upon a *new* interpretation of the Free Exercise Clause.
The ruling in Tandon v. Newsom should've been possible only if the right was "indisputably clear." It wasn't, but the Court issued an injunction anyway. Tonight, the Court refused to protect the "indisputably clear" right to an abortion because of *possible* procedural obstacles.
When you put these rulings by the same 5-4 majority side-by-side, you see much of what's wrong with the Texas decision: A Court untroubled by procedure went out of its way to expand religious liberty, but hid behind procedural Qs to refuse to enforce a right already on the books.
Read 4 tweets
Steve Vladeck Profile picture
1 Sep
It's 12:01 CDT here in Texas. #SCOTUS has not acted.

That means #SB8 — the most restrictive abortion law since Roe — is now in effect, and that virtually *all* abortions in Texas after the sixth week of pregnancy (when many women do not even *know* they're pregnant) are illegal.
Despite what some will say, this isn't the "end" of Roe.

*No* court, from the district court to #SCOTUS, has ruled on whether #SB8's substantive restriction on abortions is even constitutional.

And courts may yet put SB8 on hold — perhaps as early as later on Wednesday.
But until and unless a court blocks #SB8, it will effectively end abortions after the sixth week across Texas; and the fact that #SCOTUS is *letting that happen* is a pretty ominous harbinger of what's likely to come down the road, whether in this case, Dobbs, or another.

/end
Read 6 tweets

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