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Steve Vladeck Profile picture
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22 Oct, 4 tweets, 3 min read
#BREAKING: #SCOTUS agrees to hear *both* the providers' *and* the federal government's challenge to #SB8 on a SUPER-expedited basis (argument on November 1), but "defers" DOJ's request to put #SB8 back on hold in the interim.
Justice Sotomayor dissents from the Court's decision to *defer* DOJ's request to put #SB8 back on hold. No other writings. Merits arguments in 10 days:

supremecourt.gov/opinions/21pdf…
Importantly, the Court *limited* the grant of certiorari to whether the US can sue "the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced." So the *substance* of #SB8 is *not* before the Court.
FWIW, this is #SCOTUS moving *stunningly* fast. The last time I can recall so little time (here, 10 days) between the Court agreeing to take up a case and the oral argument was in December 2000, in Bush v. Gore.

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More from @steve_vladeck

Steve Vladeck Profile picture
15 Oct
1. Last night's Fifth Circuit order granting Texas's application to stay the injunction against enforcement of #SB8 in US v. TX includes exactly one sentence of analysis — that relief is compelled by the Fifth Circuit and #SCOTUS rulings in Jackson.

Here's why that's just wrong:
2. Recall that "Jackson" is the suit by abortion providers that had attempted to prevent #SB8 from ever going into effect. The Fifth Circuit stay in that case was based upon various immunity defenses and the fact that the named private defendant might never try to enforce SB8.
3. The whole point of the federal government's *separate* lawsuit is that many of those immunity doctrines do *not* apply when the U.S. is the plaintiff, as Judge Pitman explained at great length in his detailed, 113-page ruling supporting the injunction:

int.nyt.com/data/documentt…
Read 8 tweets
Steve Vladeck Profile picture
7 Oct
#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:
Read 6 tweets
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

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