1/10: For all of the focus on its substantive rulings, some of the Fifth Circuit's most indefensible behavior comes in technical, procedural contexts.

A recent example involves the Liberty Energy case, one of nine suits challenging the SEC's new investor climate-disclosure rule. 2/10: Under 28 U.S.C. § 2112, if a new federal regulation is challenged within 10 days in at least two courts of appeals, the Judicial Panel on Multidistrict Litigation holds a lottery—and consolidates those challenges before one of the courts of appeals in which they're pending.

#BREAKING: #SB4 is blocked again.

A majority of the Fifth Circuit panel hearing argument on Texas's stay application *tomorrow morning* just issued an order "dissolving" the "administrative stay" that a different panel imposed on March 2. So the injunction goes back into effect. Here’s the order and Judge Oldham’s dissent:

1. A quick #thread on where things stand with former President Trump's application to #SCOTUS to keep the January 6 prosecution on hold.

First, we expect whatever the Court does to be a "miscellaneous order." Such an order can theoretically come at any time and without warning. 2. Second, although the justices *are* having a regularly scheduled Conference today, chances are that the Court has already made whatever decision it's going to make—and we're just waiting for the disposition.

So why has it taken 2 weeks so far? It's *impossible* to know, but:

I may be an outlier, but I don't see a jurisdictional problem in Trump's interlocutory appeal of Judge Chutkan's rejection of immunity in the 1/6 prosecution.

Assuming for the sake of argument that there *is* immunity, it wouldn't mean much if it could only be raised post-trial. And although #SCOTUS has held that the "collateral order doctrine" is more limited in the criminal context than in the civil context (e.g., Midland Asphalt), the Court has also been clear that *constitutional* immunities from suit are one of the few contexts in which it applies.

In fact, since Does 1–3 v. Mills, Barrett has publicly voted to grant or vacate *14* stays in cases in which at least one Justice publicly dissented.

Of the 8 Josh … neglects, 7 came from *other* circuits; the 8th stayed a decision that a *moderate* Fifth Circuit panel hadn’t. In other words, the remarkable pattern that Josh purports to divine from the selective subset of orders on which he focuses only exists *because* he is ignoring virtually all of the other orders that disprove the existence of such a pattern.

1. To mark today's publication day for "The Shadow Docket," I wanted to write a #thread not about the book, but about gratitude—to *everyone* who helped to make this day a reality, and to whom I am so deeply and profoundly grateful.

Here goes: 2. At the top of the list of people without whom there wouldn't be a book are my fantastic agent, @AliaHanna, and my amazing editor, @emmafberry.

From the beginning, both Alia and Emma understood not just what I hoped to accomplish in the book, but how to make it happen.

I’m bopping around my hometown (NYC) today in advance of Tuesday’s release of “The Shadow Docket.”

First up, a *very* early start to join my buddy @PoppyHarlowCNN on @CNNThisMorning (coming up ~6:30 ET). Not sure how much this going to help, but…

1. Starting a running #thread on the decision(s) that come down from #SCOTUS starting at 10:00 ET today.

All we publicly know is that one or more rulings are coming from among the 45 cases that were argued earlier this Term.

How many rulings, and which ones, well... stay tuned. 2. And while we're waiting, if you're not already subscribed to my weekly #SCOTUS newsletter, "One First," it might be a good time to check it out!

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Two things can be true:

1. We’re going to disagree re whether specific conduct by individual #SCOTUS Justices crosses the relevant ethical lines; &

2. Institutional accountability requires there to *be* ethical lines, which shouldn’t be up to individual Justices to self-police. We spend so much energy on (1) that we’re missing why (2) is important: If there was public faith that the Justices were being held to meaningful standards by anyone *other than* the press, there’d be less sensationalism around press reports that may or may not reveal misconduct.

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.

https://twitter.com/Arianedevogue/status/1648686936343625728

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.

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.

#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).

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.

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.

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…

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.

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 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.

#BREAKING: By a 5-4 vote (with Justice Gorsuch joining the more liberal Justices in dissent), #SCOTUS keeps Title 42 immigration policy *in effect*; agrees to decide later this Term whether 19 red states should be allowed to intervene in defense of the policy in the lower courts. Here’s the order:

1. Having fully digested Trump's emergency application to #SCOTUS, here's a quick #thread on what it's really asking for, why it's not *entirely* laughable, and why I nevertheless think that it's both (1) doomed to fail; and (2) unlikely to accomplish much even if it succeeds: 2. In short, Trump is asking #SCOTUS to vacate *part* of the Eleventh Circuit's stay in the Mar-a-Lago case. In essence, he's arguing that the 100+ classified documents at issue *should* be part of the pile before Judge Dearie, and that under the 11th Cir.'s stay, they're not.

Just filed at #SCOTUS: Our new amicus brief on why Texas's transparent judge shopping ought to way against its effort to block the Biden Administration's immigration enforcement priorities — including data on how what Texas is doing is *much* worse than blue states suing Trump: Here's a link to the brief: supremecourt.gov/DocketPDF/22/2…

I'm enormously grateful to @LinzCHarrison, @samungar, and their colleagues at @JennerBlockLLP, and to Max Wolson and his team at @NILC, without all of whom this brief would not have been possible.