One possibility for today is 9th Circuit holds that government's EO appeal is procedurally deficient: TRO not appealable (/1)
That would allow 9th Circuit to put issue off until ruling on preliminary injunction order, which is briefing now in district court (/2)
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That briefingi in the district court now set to conclude on 2/17, and we can expect a ruling not too long after that (/3)
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Pretty good bet that district court will issue a preliminary injunction like the TRO, but offering substantive reasons for decision (/4)
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That preliminary injunction order could be appealed to motions panel (might not be same one?---need to check w 9th Circuit gurus) (/5)
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Whoever loses today faces the question of seeking to go to
#SCOTUS now or to wait for preliminary inj. process to go through (/6) -
Appealing to SCOTUS means fighting a technical battle on whether order is appealable before fighting merits (/7)
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Still, w such a high profile national case and with tremendous disruption if we go on-again-off-again with EO, I expect SCOTUS try now (/8)
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The other complication of course is that SCOTUS is divided 4-4 conservatives/liberals. Technical issue can give basis for ct. to duck (/9)
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On the other hand, given disruption, national interest, and knowledge that case is coming back, maybe the Ct. would reach merits now (/10)
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And it puts SCOTUS in the hot seat with a president maligning judiciary and the Court's deciding member preparing for confirmation. (/11)
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That's not the ideal place for the Court to be, and whatever institutional pressure the Chief can bring for consensus would be brought (/12)
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Normal times might counsel against appealing TRO further, waiting for fuller record on preliminary injunction. But not normal times (13/13)
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Prediction in plain English: if gov't loses on technicality, it likely goes to
#SCOTUS, where there will be great pressure to rule same way - 1 more reply
New conversation -
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Would that be appealable to SCOTUS?
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@ProfBainbridge Preliminary injunction appeal would certainly be appealable to SCOTUS as an interlocutory order -
Right, there's no final judgment rule for appeals from lower fed cts to SCOTUS (28 USC 1254(1)).
End of conversation
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