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Steve Vladeck Profile picture
@steve_vladeck
Apr 19 • 4 tweets • 2 min read Twitter logo Read on Twitter
On #mifepristone, four possible results from #SCOTUS today:

1) Grant stay pending appeal;

2) Deny stay pending appeal;

3) Weird mixed ruling; or

4) No ruling.

(1) means no change to mifepristone access anytime soon; (2)-(4) mean big changes starting Thurs. My money’s on (1).
Also, the Court’s ruling on the stay could come literally at any time today (or, per option (4), not come at all), and there will be no advance public notice that it’s nigh.

We also won’t know the vote count unless four Justices publicly dissent.

Welcome to the shadow docket.
Finally, the Justices already have a busy day ahead; we expect one or more decisions in argued cases starting at 10:00 ET (note: this *won’t* include the mifepristone ruling); and then they’re hearing one regularly scheduled oral argument.

So stay tuned… Image
Regardless, today will be a good lesson in how the way the Court uses the shadow docket is problematic even when it reaches what (to many) may be the “right” result.

Even when the Court needs to intervene in this posture, there are lots of issues with *how* it typically does so.

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More from @steve_vladeck

Steve Vladeck Profile picture
Apr 19
Here's a running #thread on #SCOTUS's decisions in argued cases to be handed down today.

"Two boxes" of opinions in the press room means that we're almost certainly getting *more than* one ruling starting at 10:00 ET.
First (but not last) decision in an argued case is in MOAC Mall Holdings (bankruptcy). Justice Jackson for a unanimous Court holds that section 363(m) is *not* jurisdictional:

supremecourt.gov/opinions/22pdf…

(This is not a big case outside of bankruptcy law.)

At least one more to go.
A good indicator of why the Court is so far behind in getting rulings out in argued cases: MOAC was argued on December 5, and yet a 15-page, unanimous opinion with no separate concurrences took over four months to get out.
Read 7 tweets
Steve Vladeck Profile picture
Apr 14
#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
Read 5 tweets
Steve Vladeck Profile picture
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
Steve Vladeck Profile picture
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
Steve Vladeck Profile picture
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
Steve Vladeck Profile picture
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

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