Steve Vladeck Profile picture
Apr 14 5 tweets 2 min read Twitter logo Read on Twitter
#SCOTUS and #mifepristone: A brief🧵on what to expect.

First, DOJ and Danco will file applications for emergency relief later this a.m. to freeze the rest of Kacsmaryk's order.

They'll seek two things:

1. A stay pending appeal; and

2. An "administrative" stay in the interim.
Because the rest of Kacsmaryk's order goes into effect at midnight tonight (12:00 a.m. CT Saturday), there isn't time for the full Court to rule on the full stay pending appeal.

Instead, the focus today is the request for an "administrative" stay (freezing things temporarily).
That request goes to Justice Alito as Circuit Justice for the Fifth Circuit.

And even though you may think the result is thus foreordained, Alito (like the other Justices) has previously *issued* administrative* stays even when he ultimately didn't vote for a stay on the merits: ImageImage
My best guess is that we see a similar process here—with Alito issuing an administrative stay, ordering the plaintiffs to respond by early next week, and teeing up a ruling by the full #SCOTUS sometime next week as to whether or not the rest of Kacsmaryk's order will be frozen.
There's nowhere near a 100% chance of that happening, but I think the odds are well better than not, given the equities, that there's an administrative stay—and that the big ruling comes next week when the full Court has had time to consider the matter a bit more carefully.

/end

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More from @steve_vladeck

Apr 13
Late last night, a divided Fifth Circuit panel (by what was effectively a 2-1 vote) issued a super-complicated ruling freezing *part* of Judge Kacsmaryk’s decision (that had purported to stay the FDA’s approval of mifepristone), but only *part* of it:

drive.google.com/file/d/1uiqFoJ…
The panel ruled that the challenge to the 2000 approval of mifepristone itself is likely time-barred, so it froze that part of the ruling. But it *didn’t* freeze Kacsmaryk’s block of the 2016 and 2021 revisions that (1) make mifepristone available up to 10 weeks; and (2) by mail.
In other words, barring further intervention from #SCOTUS, as of 12:00 Saturday morning, mifepristone will no longer be approved for abortion between 7 and 10 weeks of pregnancy (it *will be* approved before); and it will no longer be approved for distribution by mail.
Read 7 tweets
Apr 4
The en banc D.C. Circuit has *finally* decided al-Hela (the major #GTMO due process case).

We don't have the opinions yet, but it *appears* that the court has rejected two of al-Hela's due process arguments (assuming due process applies), and remanded a third.

IOW, a huge punt.
So al-Hela can argue in the district court that the fact that he's being held *after* having been cleared by the Periodic Review Board violates (substantive) due process. (This is probably what provoked the four dissenters.)

But he loses on his two other due process challenges.
My best guess is that the 11 judges divided as to whether he loses the first two arguments because due process is *satisfied* or because it doesn't apply in the first place.

And so the 7-4 vote is likely on the third issue — over whether the PRB claim should even be remanded.
Read 4 tweets
Mar 12
One of the (many) problems with plaintiffs being able to literally hand-pick the judge who hears such a high-profile case is that *any* procedural irregularity on the judge's part looks especially suspect — like trying to limit public access to hearings:

washingtonpost.com/national-secur…
The point is not, contra Judge Tipton's recent ruling, that the judge must therefore be biased; it's that the appearance of manipulation by the plaintiffs paints everything that the judge does that's out of the ordinary in an especially unfavorable light:

nytimes.com/2023/02/05/opi…
This is a perfect illustration of the problem. If a randomly drawn judge had undertaken to limit public access to a key hearing, it would certainly be *a* story, but almost certainly not as sinister as one based on the fact that it's this particular judge in this particular case.
Read 4 tweets
Feb 16
Texas has filed its response to DOJ’s motion to transfer a challenge to a Biden immigration policy filed in Victoria—with a 100% chance of being assigned to Judge Tipton.

Gist: Because there once were single-judge districts, there’s no problem today with single-judge divisions.
This misses the point. DOJ isn’t arguing that single-judge divisions are presumptively invalid; it’s arguing that *Texas* is exploiting them in ways that raise questions about the fairness of the judicial process. That Texas has no defense of *its* pattern of behavior is telling.
Also, to Texas’s risible claim that it’s *DOJ* that is engaging in judge shopping, one of the alternative venues to which DOJ proposed transferring the case was Corpus Christi — where one of the three judges to whom it could have been *randomly assigned* is … Judge Tipton.
Read 5 tweets
Feb 11
In a new order filed today, the Southern District of Texas has eliminated the single-judge division in Victoria. Going forward, new civil cases filed in Victoria have a 50/50 shot of being assigned to Judge Morales (Trump appointee) or Judge Ramos (Obama)

txs.uscourts.gov/district/genord
Of note, the order does not get rid of the Southern District’s *other* single-judge division (Galveston, where Judge Brown hears 100% of new civil cases).

So this appears to be more specific to divvying up Victoria cases rather than eliminating single-judge divisions writ large.
The more I look at this, the more it seems like something may be affecting Judge Tipton’s ability to hear any new cases. The new order also designated Judge Ramos — rather than Judge Tipton — as the “liaison judge” for Victoria.

Image 1 is the 12/30/22 order; image 2 is today’s:
Read 4 tweets
Feb 7
The most common (substantive) response to my critique of judge shopping is that it’s no different from filing in a forum where most/all judges were appointed by presidents of the same party.

That assumes that all judges appointed by presidents of one party are indistinguishable.
Whatever your priors, I’m sure that you can think of at least two judges appointed by Democratic (or Republican) presidents who *wouldn’t* see eye-to-eye in all (or even most) cases.

If that’s true, then the distinction between forum- and judge-shopping seems pretty significant.
If your view is, instead, that there is literally no difference between any judges appointed by a Republican (or Democratic) President, I’d respectfully suggest that such a position is belied by mountains of available, accessible evidence to the contrary. Specific judges matter.
Read 4 tweets

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