The 5th Circuit Court of Appeals is making a habit out of being overturned by the Supreme Court, especially on matters of standing. Here's what’s driving the...
The most recent example was Aug. 16. By a 2-1 vote, a 5th Circuit panel partially stayed Judge Matthew J. Kacsmaryk’s sweeping order that banned the medication-abortion drug mifepristone. But the 5th Circuit’s opinion had no immediate legal effect because the Supreme Court had already intervened in the case to grant a complete stay of Judge Kacsmaryk’s order, pending the Supreme Court’s own review.
It’s no secret why. There is serious doubt whether the plaintiffs have standing to bring the medication-abortion case because their claim to standing is based on a series of probabilistic events linked to FDA’s approval of mifepristone. And in three recent cases, the Supreme Court has reversed the 5th Circuit for finding standing when the high court saw only speculative harm.In 2021, in California vs.
In U.S. vs. Texas this past term, the Supreme Court held 8-1 that Texas lacked standing to challenge the federal government’s discretionary enforcement policy about the arrest of unauthorized entrants into the country. And on the last day of the term — the same day that the Supreme Court invalidated the Biden administration’s loan-forgiveness program — it unanimously found that the plaintiffs lacked standing in the companion case, from Texas, of Department of Education vs. Brown. It held that those plaintiffs’ hopes of qualifying for hypothetical future debt relief were too speculative to let it challenge the Biden administration’s program.
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