Why Did Only Justice Gorsuch Sign The Remand Order in WWH v. Jackson

This Monday Whole Woman’s Health applied to the court immediately. Justice Alito was contacted to address the application. He is Circuit Justice for Fifth Circuit. The Supreme Court Rule 45.3 was invoked to grant them relief. I wrote more about the details of this rule here. Although Rule 45.3 does not specify how parties may request early mandates, it is a good starting point. Rule 45.3 does include Rule 45.2. This provides for:

A case under review by a state court will issue the mandate 25 days after the entry of the judgement, unless the Court, Justice or the parties agree to a shorter or longer time.

This rule applies to federal courts and suggests that you can request expedited the issue of the mandate to “the Court, or a Justice.” The request must be addressed to a Justice in accordance with Rules 21 or 22. Abortion clinics took the second approach and addressed the Justice Alito application.

This decision is not clear to me. Given that all the Justices have ruled on the case, wouldn’t it be more sensible to refer the request to the entire Court? Indeed, the clinics could have potentially garnered a dissent that explains what happens on remand–specifically, the Fifth Circuit should remand the case to the District Court, rather than certifying to the Texas Supreme Court. Circuit Justice Alito was elected by clinics. He didn’t fix the issue. Justice Gorsuch did. Gorsuch also did not refer to the Court in its entirety. He did, however, check with other members.

It is possible that the Court has an internal procedure where a single-Justice request, which arrives after the case is resolved, is sent to the Justice who wrote majority opinion. It is not possible to recall ever having seen a one-justice decision issued by someone other than the circuit justice. Please email me if you have any examples.