I’m Not Saying They Were Wrong

Garland Says DOJ Will Seek Emergency Relief From Supreme Court After 5th Circuit Mifepristone Ruling https://t.co/FodPJ2vThC via @TPM

— Josh Marshall (@joshtpm) April 13, 2023

But I really wonder why DOJ didn’t take Steve Vladeck’s  analysis more seriously.

In today’s issue of “One First,” I walk through Friday’s dueling district court decisions on the FDA’s approval of mifepristone; why the Amarillo ruling is such a big deal (and so flawed); and what’s likely to happen next — including, potentially, at #SCOTUS.

(Link is in reply.) pic.twitter.com/SMDfdxE3yp

— Steve Vladeck (@steve_vladeck) April 10, 2023

His argument was that, with conflicting opinions, the Supremes had jurisdiction and DOJ could use that to bypass the 5th Circuit; which surprised no one in how they ruled.

Alito has the power to issue an administrative stay by himself. He could also issue a stay pending appeal by himself, but the norm in *all* cases in recent decades has been to refer *that* issue to the full Court.

Gonna be a busy 35.5 hours at #SCOTUS.https://t.co/mm8RRBraoy

— Steve Vladeck (@steve_vladeck) April 13, 2023

Professor Vladeck’s advice might have led to the same end, or even lengthened the matter if the court peremptorily returned the case to the circuit court. Obviously we’ll never know. But oh, to be a fly on the wall during the discussion of the legal strategy.