SCOTUS Timing on TX Abortion Case: Will Justice Ginsburg Be Up Till 5 am Again?

Lyle Denniston reported Friday on this emergency stay petition filed by abortion rights plaintiffs in the litigation over Texas’s controversial abortion restrictions. The petition was filed Friday, and if the Court does not act, the challenged provisions of the law will go into effect July 1.

So far, Justice Scalia (the Circuit Justice assigned to handle emergencies from the 5th Circuit) has not asked for a response. Eventually that should be coming, but it seems that that the order for a response should come the sooner the better, with the rush to finish some of the the most controversial and important cases of the Supreme Court’s term over the next week. Then the Justices take off across the globe.

The situation reminded me of the emergency relief requested just before the 2014 elections surrounding Texas’s voter id law. It led to a dissent being issued by Justice Ginsburg at 5 am on a Saturday before the Monday when early voting would start in Texas. NPR’s Nina Totenberg asked Justice Ginsburg about the timing, and here was Justice Ginsburg’s explanation that it was because of a delay from Justice Scalia’s chambers.

Nina Totenberg: Justice Ginsburg, you were up until … Friday night/Saturday morning, writing a passionate dissent in the Texas voter id case. Just to let people in the audience know, this was a procedural question in some measure. And you can note a dissent in those kinds of cases and not write and it is fairly common for that to happen. But you wrote; you were joined by Justices Kagan and Sotomayor. So why did you write and why did it take until 5 in the morning?

Justice Ginsburg: Why till 5 in the morning? We didn’t get the last filing from Texas until Friday morning and then the Circuit Justice [Justice Scalia in this case—Ed.] as you know has to write a memo. And that came around some time in the middle of the afternoon. So there wasn’t much time to write the dissent. I had written a dissent in the North Carolina voting case, voting rights case. This one was… I would say it was very well-reasoned. You called it passionate.

UPDATE 6/24 at 2:30 pm PDT: Justice Scalia has asked for Texas to file a response by 4 pm Friday, which gives the Court more time to consider this request.

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