Why Did Chief Justice Roberts Not Dissent In WWH Mandamus Case?

WWH filed a request for a mandamus writ by the Supreme Court Thursday evening. The case now goes to Texas Supreme Court. This court will decide if state licensing officials have the right to enforce S.B. 8. (I believe the answer is No.)

The three dissenting voices were not omitted. Justice Breyer, Justice Sotomayor, and Justice Kagan wrote a joint dissent. Justice Sotomayor also wrote a dissident, which was joined by Justices Kagan and Breyer. Both of the dissents stated categorically that the Fifth Circuit violated the Supreme Court order.

Justice Breyer said, “The Court of Appeals ignored my judgment.”

Justice Sotomayor used a stronger language

Remand actions by the panel It is clear that they are indefensibleFor the reasons explained well by Judge Higginson, this Court has rendered its judgment. . . . This Court ruled in favor of the appeal. no defensible basisto the Fifth Circuit Panel, delaying the resumption proceedings at the District Court. . . . This tactic can be blessed by the panel Ignore this Court’s obvious message that this case should proceed—and proceed expeditiously.

Judge Edith Jones was also given a shout out by her:

The Fifth Circuit was arguing four days later when one judge of the panel suggested that, because the Court is looking into a challenge to the Constitution, it might be able to hear arguments from the Fifth Circuit. Roe v. Wade, 410 U. S.113 (1973), panel could just “sit down on this till the end of June” instead of fulfilling its obligation and applying existing precedent. 

Justice Sotomayor also blasted the Court for allegedly flouting precedent.

A Fifth Circuit panel should not be stopped from allowing Texas to indulge. Latest delay tacticsThe Court grants the state permission to deprive its citizens of their federal constitutional rights through Procedureal manipulation. While the Court may not see it that way, I do. . . This Court shouldn’t accept this an egregious distortionOf its decision. . . .  . . . The Dilatory strategiesThe terms to which the Court today agrees are compatible with and part of this scheme. . . . It accepts another appeal despite the Court’s objections about its “extraordinary solicitude” in this case, and the narrowness that any dispute is. A dilatory tacticTexas 

Justice Sotomayor condemned Chief Justice Roberts in particular for encouraging further delays. In the previous case, Roberts was largely against Texas.

These are the eight Justices “agreeing”[d]On this point id., At ___ROBERTSC. J. (concurring in judgement in part and dissident in part), slip op. 2 also stated that the litigation must continue apace.Four stated that the District Court must resolve the litigation and provide appropriate relief. Without delay.” Ibid.

There is no way to be sure how Roberts voted. He could have granted the writ de mandamus but did not take note of his dissension. Roberts’ approach is doubtful. Roberts has declared himself a judicial supremacist. He would have declared that he believed the Fifth Circuit had flouted Supreme Court orders. Hell is not furious like supremacists scorned. Roberts was silent here.

This explanation is more probable. Consistent with the Fifth Circuit’s decision, WWH II. II. The Supreme Court could not and did not decide what the role of state licensing officers was. The only way to resolve this question was through certification. If Texas Supreme Court rules that such officials are not allowed to enforce S.B. 8, then the case is closed. The case against them is closed. It is not necessary for the federal court to issue an unenforceable injunction.

Any injunction issued by the district court to the licensing officers would also be null and void. They have stated that they will not take action against clinics. Injunctions would not be of any practical use in the real world. The threat of private suits continues.

Jonathan Mitchell proved to be the genius once again.

All of this deliberation is made under the watchful eye of Dobbs. At least, they know what the Justices think. Justice Sotomayor’s dissent has me feeling a sense of defeat. She is aware of what lies ahead. The rest, however, will have to wait until June’s end just like Judge Jones.