Thread by @RMFifthCircuit

OK, I'm going to be somewhat livetweeting the Fifth Circuit oral argument in the #SB8 remand.

To recap, what is going on? #SB8 is Texas's unusual private enforcement abortion ban. 1/

The Supreme Court said that the abortion providers could sue, but only certain Texas licensing officials, based on their understanding of Texas State law. The Court remanded to the Fifth Circuit, presumably(?) to send to the district court to adjudicate those claims /2

But Texas jumped in, and told the Fifth Circuit that Texas law doesn't really allow this licensing officials to enforce anything, as Justice Thomas had suggested. So Texas asked the Fifth Circuit to send the case to the Texas Supreme Court to answer that question instead. /3

We already know the panel is probably inclined to certify, because Judge Higginson dissented from the decision to even have oral argument, noting that it keeps a currently unconstitutional law in force. So here we go, argument is on - 5thcircuit.streamguys1.com/east /4

Judge Higginson is off - "Are you aware of any Court where a circuit court has certified after the Supreme Court has made a ruling about a state law {an Erie guess}?"

Higginson of course knows there are none, and that's why he's asking. /5

We are having a fairly long colloquy on this. Higginson's point is that certifying now would essentially disobey the Supreme Court's mandate. The Supreme Court ruled - why, Higginson says, would we defy that 8-1 holding? /6

Judge Jones jumps in to make the point that the Supreme Court refused to remand directly to the district court, so wasn't it saying the Fifth Circuit certify?

Higginson interrupts to point out - the Supreme Court itself could have certified. /7

Higginson asks a question about "assume you prevail and we certify?" - the cat is out of the bag. The panel has made up its mind (in my view, of course, this is tea leaf reading). /8

A note, I can't hear Judge Jones very well.

Here is Judge Duncan, asserting that the "district court needs to know the answer to this question before adjudicating the case in general?"

Again, he's made up his mind. /9

Counsel is resisting this: if the Texas Supreme Court provides the answer she wants, she wants the Fifth Circuit itself to dismiss. /10

This is pretty tense. Judge Jones made a sarcastic joke about certifying back to the Supreme Court of the United States. Judge Higginson didn't know it was a joke and went off on that. /11

Texas SG says that if the Fifth Circuit makes an Erie guess, a district court could still certify to a state Supreme Court, and not be defying the mandate of the Fifth Circuit. /12

OK, we're on the abortion providers. They are starting with the Supreme Court's mandate - they are saying the Supreme Court ordered the claims to proceed. /13

Judge Duncan says he rejects that premise, because the Supreme Court could itself have enjoined #SB8. /14

Duncan then says, based on the Supreme Court's opinion,, the injunction the abortion providers could get wouldn't even provide them real relief (because it is only against a few defendants), so what is the problem? {I'm paraphrasing} /15

Duncan is still pressing on this - his point is basically that the injunction against the licensing officials is pointless. What's the urgency, says Duncan? This is empty. /16

Judge Jones (I can barely hear her) asks something like "why shouldn't the Texas courts resolve this question. Won't federal courts have egg on our faces if we turn out to be wrong?" /17

Now we're on the question of whether this is unusual. Judge Jones says there is nothing unusual here.

Judge Higginson jumps in to argue with Judge Jones, and asks whether "we would be divesting the Supreme Court of jurisidiction?"

That is... not exactly a question. /18

Duncan and Higginson are in a debate about whether the Supreme Court even held that there would be standing in its opinion. /19

Judge Jones mentions, for some reason, prosecutors refusing to prosecute crimes under $900, around the country. /20

Jones: "What happens if, as many suspect, the Supreme Court says something about Roe v. Wade [in Dobbs]?" Implying shouldn't we wait for Dobbs. /21

Indeed, I think Jones said "shouldn't we sit on this case until June" or something like that. Did anyone else hear it? /22

We're on to rebuttal.

Higginson immediately asks: "is it Texas's position we should sit on this until Dobbs is released?"

After wiggling, Texas says no. /23

Higginson: "Would Texas oppose a motion to expedite at the Texas Supreme Court?"

Texas dodges - lawyer doesn't have the authority for that, I think. /24

Higginson: "If we certify, can you think of any reason why we wouldn't certify not just the question you lose, but not the question the other side lost at the Supreme Court?"

Jones tries to interrupt. Higginson cuts her off - "I am asking *counsel* a question."

Tense. /25

Judge Jones tries to protect counsel from Judge Higginson questions (that I take she feels are too aggressive), and Judge Higginson asks counsel "Are you intimidated of me? Have I been asking you unfair questions?" /26

That's it. That was ... a difficult listen, honestly. I think almost certain the case is either going to be held until June or certified to the Texas Supreme Court.

Sum up in next tweet.
/27

So, the result seems quite likely to be certification to SCOTX. That will take some time, even if the Texas Supreme Court expedites. Thus, no action will be taken in federal court enjoining #SB8, unless SCOTUS acts.
Predictions from OA=bad but this one is pretty solid.

Just from a law nerd standpoint, I would have hated to be on either end of that argument.

It's part of our job, but when the judges are that upset it isn't a pleasant experience. But it's the job.

Important caveat: I am live tweeting, so all quotes are the best I can do. I will listen to it again later, and if I'm materially wrong, will fix.

OK, so Judge Jones did say we should just sit on it

https://twitter.com/lsepper/status/1479477741582012423