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Justice Department files its brief with the Fifth Circuit

Good luck. They’re going to need a lot of it.

Right there with them

The Biden administration urged the courts again to step in and suspend a new Texas law that has banned most abortions since early September, as clinics hundreds of miles away remain busy with Texas patients making long journeys to get care.

The latest attempt Monday night comes three days after the 5th U.S. Circuit Court of Appeals reinstated the nation’s most restrictive abortion law after a brief 48-hour window last week in which Texas abortion providers — following a blistering ruling by a lower court — had rushed to bring in patients again.

The days ahead could now be key in determining the immediate future of the law known as Senate Bill 8, including whether there is another attempt to have the U.S. Supreme Court weigh in.


“If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department told the appeals court.

In wording that seemed to be a message to the Supreme Court, the Justice Department raised the specter that if allowed to stand, the legal structure created in enacting the law could be used to circumvent even the Supreme Court’s rulings in 2008 and 2010 on gun rights and campaign financing.

It is not clear when the 5th Circuit court will decide whether to extend what is currently a temporary order allowing the Texas law to stand.

See here and here for the background. Yesterday was the deadline for the briefs to be filed for the Fifth Court to consider whether to allow the restraining order put in place by Judge Pitman to remain or to continue to stay it and thus allow the extremely unconstitutional SB8 to be enforceable. You know my opinion of the Fifth Circuit. I figure they only bothered to ask for briefs so they’d know how to customize their order allowing SB8 to stay in place. We have to go through the motions regardless. Whatever they do, this will go to SCOTUS next. In the meantime, maybe the court should consider and address the state’s true motives, for then at least we might have some clarity. Axios has more.

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  1. Kibitzer Curiae says:

    Re: Fifth Circuit timeline issues (“deadline for the briefs”)

    The Respondent (DOJ) submitted their briefiing before the deadline (technically a motion response,  not a brief), but the panel then requested a reply by the State by Thursday, meaning that they are not going to issue anything before then. If even then.

    Justice Blacklock recently told us that the OAG can do good work even over the weekend, if need be, so the State could have responded faster. Nor is there much more to be added to the arguments already presented in the district court and in the prior appellate submission. And amici are already weighing in too.  

    This additional delay doesn’t bode well for the DOJ. The panel will likely come out with a significant to-be-published opinion even though it’s on a procedural issue (stay pending appeal), and will with it set the stage for SCOTUS consideration. Judge Ho and Steward will no doubt diverge greatly in their respective takes on the numerous legal issues, with at least one separate opinion, if not two, to be expected to lay out the details. This will likely mirror the split we have already seen on the SCOTUS with the separate statements in WWH v. Jackson I.


    It will be interesting to see what they do with the argument that the U.S. does not have standing to sue Texas for the benefit of “pregnant persons” (and the abortion industry) on grievances that implicate private interests rather than collective national interests, and that there is no equitable cause of action that the DOJ can assert in the absence of a congressionally authorized one.

    On the standing issue, they might conclude that there is limited standing as to the potential effect of SB8 on U.S. government agencies and their contractors, but that the threat of enforcement against agency leaders or employees is either speculative, or that success of an SB8 claim is foreclosed because defenses will be asserted to get SB8 suits against federal targets dismissed on preemption or immunity grounds when they are filed. Nor would the federal government lack in resources to defend such suits should any be brought.


    As for enjoining state judges, it can be expected that the panel will nix the injunction categorically because its effect is to deprive state judges of the ability to perform their duties (which would include the matter of judging the constitutionality of SB8 when that issue is raised by a defendant). A different panel of the Fifth has already made it clear that state judges are bound by applicable SCOTUS precedents, and they cannot be presumed to *not* follow the governing law to justify injunctive relief against them preemptively. We don’t generally expect judges to break laws they may disagree with in cases where such law is to be applied (also see oath of office), therefore such (feared) judicial action violative of “the rule of law” cannot pose an imminent threat to be countered and abated through an order issued by another judge. In any event, the proper manner to correct an erroneous trial judge ruling would be by appeal or mandamus.


    Also, on a terminological point, Judge Pitman’s order is not a restraining order, but a preliminary injunction. Makes a difference procedurally. TRO cannot be appealed and would have to be challenged by mandamus.


    “The order states that, as government employees, the  State’s lawyers could not have been expected to respond to a TRO application over the weekend. TRO at ¶ 2. As the district court should have been aware, this is simply not true. Like many other lawyers, the State’s lawyers frequently work nights and weekends to meet short deadlines and respond to emergency filings. Had Plaintiffs or the district court attempted to notify the State and solicit a response on short notice, there is no reason to doubt the State’s lawyers would have offered one. Yet neither Plaintiffs nor the district court even bothered to try.”

    In re Abbott, No. 21-0667 (Tex. Aug. 17, 2021) (directing district court, in mandamus proceeding, to immediately rescind). 

  2. Kibitzer Curiae says:

    CORRECTION: Judge Stewart, not Steward (Carl E. Stewart) sits on the panel.

    The Fifth Circuit’s prior opinion on state judges not being proper defendants for litigating constitutional challenges to state statutes (and SB8 in particular) is available from Google Scholar. Hotlink below.


    Plaintiffs’ claims against a state judge and court clerk are specious. Young explicitly excludes judges from the scope of relief it authorizes:

    [T]he right to enjoin an individual, even though a state official, from commencing suits . . . does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature. . . . [A]n injunction against a state court would be a violation of the whole scheme of our government.
    209 U.S. at 163.

    Moreover, it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law. Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003); Just. Network Inc. v. Craighead Cty., 931 F.3d 753, 763 (8th Cir. 2019); Allen v. DeBello, 861 F.3d 433, 440 (3d Cir. 2017).

    FOOTNOTE [17]

    See Bauer v. Texas, 341 F.3d 352, 359 (5th Cir. 2003) (“The requirement of a justiciable controversy [under Article III of the Constitution] is not satisfied where a judge acts in his adjudicatory capacity.” (citations omitted)); Ex parte Young, 209 U.S. at 163 (“The difference between the power to enjoin an individual from doing certain things, and the power to enjoin courts from proceeding in their own way to exercise jurisdiction, is plain, and no power to do the latter exists because of a power to do the former.”).

    LEGAL CITATION: Whole Woman’s Health v. Jackson [Austin Jackson, Texas District Judge], No. 21-50792, 2021 WL 4128951 (5th Cir. Sept. 10, 2021) (per curiam)

  3. Kibitzer Curiae says:

    That’s all? … Disappointingly parsimonious.

    United States Court of Appeals for the Fifth Circuit

    No. 21-50949

    United States of America,
    State of Texas,
    Erick Graham; Jeff Tuley; Mistie Sharp,
    Intervenor Defendants—Appellants.

    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 1:21-CV-796

    Before Stewart, Haynes, and Ho, Circuit Judges.

    Per Curiam:

    The emergency motions to stay the preliminary injunction pending appeal are granted for the reasons stated in Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021), and Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021). Judge Stewart dissents. The appeal is expedited. The Clerk will schedule this case for oral argument before the same panel that will hear the appeal in Whole Woman’s Health v. Jackson, No. 21-50792.

    Case: 21-50949 Document: 00516056022 Page: 1 Date Filed: 10/14/2021

    Original here:


    What it means: A single federal district judge can’t commandeer the entire Texas Judiciary, and other pending lawsuits may proceed.

    Did you-all hear that, Multi-District Litigation Panel?

  4. policywonqueria says:

    Texas MDL board ruled earlier today. Kibitzer missed it.

    No big surprise either:

    Order Issued stating, “we GRANT the request for a transfer of the cases listed in the Motion to Transfer, and we transfer the cases 98th Judicial District Court of Travis County and assign the Honorable David Peeples to serve as the Pretrial Judge. We limit the scope of the MDL Pretrial Court to those cases listed in the Motion to Transfer, together with tag-along cases5 that seek to prevent [Texas Right to Life] and those allegedly acting in concert with TRL from enforcing Senate Bill 8.”

    Case style: IN RE TEXAS HEARTBEAT ACT LITIGATION (Texas MDL Panel No. 21-0781 Oct. 14, 2021)(order granting transfer of 14 cases and appointing pretrial MDL judge). (SCOTX clerk does double-duty as MDL Panel clerk; that’s why the case number looks like a Texas Supreme Court case, which it is not. The panel oversees related trial court cases].


    Harry Litman
    Completely unreasoned 2-1 opinion from the fifth circuit keeps the Texas statute in effect But sets up US appeal to the Supreme Court, which won’t have the crazyquilt enforcement scheme to depend on, Alito did last time around

    COMMENT ON THE COMMENT: It’s more like decision rationale by reference.

    Also: There is still that problem of enjoining state judges from doing what judges do: adjudicating. Probably won’t fly regardless of who the plaintiffs are. But, by the time the SCOTUS or the FIFTH get to weigh in, some of these other judges may already have accomplished the feat: ruled on SB8’s constitutionality (perhaps upholding it in part, but not facially and categorically).

    Planned Parenthood already has a motion for summary judgment on file seeking a declaration, rather than merely an injunction.