Thread by @RMFifthCircuit

Oh, I’m dumb. higginson wrote a dissent.

For someone who reads all of Judge Higginson’s output, this is an extremely furious, albeit respectful, dissent.

Am I being a ding dong, or does this not say who the majority is?

To summarize: the Supreme Court held that the abortion providers’ suit against some Texas licensing officials about #SB8 could proceed.

Justice Thomas suggested that maybe it couldn’t, under Texas law.

The Supreme Court sent the case to the Fifth Circuit, 1/

But in the normal course of things the Fifth Circuit would have sent the case back to the district court, who was going to enjoin SB8 (almost assuredly).

But Texas asked the Fifth Circuit to send the case to the Texas Supreme Court to ask it Justice Thomas’s question. /2

Almost always, the Fifth Circuit would have said “well, let’s deal with that on appeal from whatever the district judge does.”

But it didn’t, here. Instead, it intervened to set argument about the “certification” question right away. /3

The effect of that order is 1) delay at least until January 7—so the district judge cannot do anything until at least then and then 2) if the court decides to certify, then a further delay of some months while the Texas Supreme Court decides what it is going to do. /4

All in all, this a) delays the imposition of an injunction finding SB8 unconstitutional and b) if SCOTX is called on, and it takes the case, and it agrees with Justice Thomas, completely vitiates SCOTUS’s decision allowing the lawsuit to proceed.

Having poked around a bit, I agree with @masslon that this is probably the Jones, Higginson, Duncan, panel.

If that's true, I think it's fair to say that's an unfavorable panel if what you're hoping for is remand and issuance of an injunction.

Now for my whining into the ether: because this dissent was appended to a court directive setting oral argument, not a court order, it isn't publicly available on the web site.

This is a problem that used to afflict mandamus denial opinions, but..

ca5.uscourts.gov/electronic-cas…

That was fixed by the Court when it was brought to its attention.

Now, this kind of thing is so rare that maybe it doesn't matter, and look, the opinion is at the top of the thread for all to read,but still.