Supreme Court, U.S. Court Of Appeals, United States discussed on Bloomberg Law


Circuit Court of Appeals considered the most conservative circuit in the country held oral arguments over whether the Texas Supreme Court should weigh in on the Texas law banning most abortions I've been talking to professor Lea littman of the University of Michigan law school The Supreme Court sent it back to the 5th circuit specifically and then the 5th circuit should have sent it back to the federal judge who initially decided the case Yes I think that that's correct The reason why the United States Supreme Court sent this case back to the U.S. Court of Appeals for the 5th circuit is that they the United States Supreme Court technically heard this case on what is called a petition for surgery before judgment in the court of appeal And when the Supreme Court does that they will often then staff the case back to the Court of Appeals But here there really wasn't anything for the Court of Appeals to do given that the United States Supreme Court had resolved the arguments in the case about whether the defendants were proper parties to be sued and they both could and should have immediately set the case back down to the district court to do what was next on the district court list of things to do which was considered the providers request for an injunction against the law Now the district court judge seems inclined to find in favor of the abortion providers I mean could we consider that as a reason why the 5th circuit didn't send it back to the district court judge I think absolutely The district judge in this case has issued one injunction against FDA that was in the case that the United States brought against Texas and it seems earlier in this case the case brought by the providers to be on the cost of entering an injunction against FDA And we know that the U.S. Court of Appeals for the 5th circuit didn't think that there should be an injunction against this law It's days that as it put on hold the proceedings in the district court in the case involving the providers So this case And then it previously stayed the injunction that is put on hold the injunction that the district court had issued in the case brought by the United States So it seems like the U.S. Court of Appeals for the 5th circuit is very rare that the district court is inclined to enjoin this law and that they don't think it should be enjoyed I don't understand why the Supreme Court took this route instead of just do they just want to avoid deciding the ultimate question There's no way of knowing that but it just seems like this is this is a ridiculous to be sending it back to the 5th circuit Based on how the Supreme Court wrote the opinion in this case it did not seem like they thought there was any need for expediency to get this law off the book and to stop it from being informed even though they heard the case on an expedited schedule they took their time deciding the case and then they did not issue a stay against the law while they were considering it And so it doesn't seem like a majority of the court believes that it is an urgent matter to put this law on hold and allow abortion to resume in Texas And again the way the justice Gorsuch wrote the opinion for the core made clear that their conclusion that the providers could sue the state licensing officials with merely because of their interpretation between cores interpretation of how this state law was written And so they invited and opened up the door for this challenge that the Supreme Court has not interpreted the state law correctly The dissenting judges the chief justice together with the democratic appointees made clear that basically no matter how the state wrote this law the providers could add a minimum to the state court clerk and the state attorney general But because the majority dismissed that possibility they created this universe in which the providers lawsuit rose or fell depending on the proper interpretation of the state law and who was gained enforcement authority to So the judges if the Supreme Court upholds Mississippi's abortion law how does that affect the Texas abortion law It will certainly make it more likely that the Texas abortion law could be upheld if a court were to reach the merits of the lawsuit Tactically the issues that the course are deciding right now are not whether the law is unconstitutional but instead whether the law can be challenged in federal court Now if the Supreme Court upholds in Mississippi statues in either overrules formerly roe versus wade or dramatically modifies then that would create the possibility that were a federal court to reach the merit of whether Texas SBA is constitutional They could possibly hold it One of the judges said normally this court isn't litigating on behalf of one side or the other And I know I've said isn't this unusual Twice already during this interview but that also seems really odd for a judge to say There were definitely several oddities about the oral argument It's clear that there are strong feelings on both sides about the legal arguments and also how the courts are handling this case Just higginson in the dissenting opinion when the U.S. courts appeals after the schedule oral argument on this motion to certify invited the United States to intervene in the lawsuit and participate as an amateur because he felt that the courts and the states were slow walking this challenge and in the process nullifying people's ability to exercise their constitutional right on the other hand you have the two Republican appointed judges on the course of appeals kind of making jokes that the oral arguments suggesting the Supreme Court got this case wrong and so there are definitely strongly held views on both sides which means for a quite testy oral argument It seems like a complete and total uphill battle for the abortion providers Just it seems to indicate how smart it was for the right to life people in Texas to frame the law in this way I think yes and no These arguments only had a chance of succeeding given the change composition of the Supreme Court as well as the very very conservative U.S. Court of Appeals for the 5th circuit The two judges on this panel include one who has written an opinion criticizing roe versus wade is urging the Supreme Court to overrule it So this is a very favorable panel And I don't think honestly much depended on the fact that the law was crafted this particular way rather it depends on the composition of the Court of Appeals and the United States Supreme Court and the fact that they are very hostile to the rights to an abortion What about the Texas Supreme Court The Texas Supreme Court I'm not as familiar with them but I don't think anyone thinks of them as a left leaning court I don't know however what they might say were the issue to be certified to them as I expect it will be Thanks Leah That's professor Lee lit of the University of Michigan law school Coming up the Supreme Court seems hesitant about the vaccine mandate for most workers This is Bloomberg For the Jewish community.

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