Lots of us have been puzzled as to why SCOTUS didn’t lift the 5th circuit stay on the district-court injunction to temporarily block SB 8 when it granted cert before judgment, and why only Sotomayor dissented from that denial
After today’s hearings, it’s less puzzling.
After today’s hearings, it’s less puzzling.
1. The “procedural morass” (Kagan) is more troubling to more justices in US v. Texas, yet that’s the (only) case w a lower-court injunction that could be restored. The majority preferred the Whole Woman’s Health route all along.
2. Seems the majority knew they wanted to block SB 8 but didn’t know exactly how and wanted to use briefing & oral arg to sort out whom specifically to enjoin (clerks, judges, AG, private parties). Path of least resistance sounds like state clerks.
So 3. Breyer and Kagan did not dissent from the denial to lift the 5th circuit stay on a October 21st because they didn’t like that vehicle as much & knew they didn’t have a majority for it. And they didn’t think there was an obvious clean alternative before oral argument.
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