Representing the Biden administration, the US Justice Department Monday formally requested that the Supreme Court vacate the Fifth Circuit Court of Appeals’ stay of a preliminary injunction of the controversial Texas abortion law SB 8. The DOJ’s application to the Supreme Court calls the Fifth Circuit’s decision to stay the injunction “unjustified” and decries “Texas’s ongoing nullification of this Court’s precedents and its citizens’ constitutional rights.”
According to the Justice Department, the Supreme Court should consider the same factors to vacate the stay that the Fifth Circuit considered when enacting the stay. The four factors ask a court to consider:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
The Justice Department believes that the United States is likely to succeed on the merits of the case because Texas seems to insist “that no party can bring a suit challenging SB 8.” If true, this “proposition is as breathtaking as it is dangerous.” The Department also believes that citizens of Texas are currently suffering irreparable harm due to the denial of their constitutional rights while Texas will suffer “no cognizable injury from a preliminary injunction barring enforcement” of the law.
The Justice Department is requesting that the Supreme Court treat the application as a petition for certiorari and set dates for the briefing and argument of the case during the current Supreme Court term.