The move means it will be weeks, and perhaps months, before the case goes back to the federal trial judge who has ruled against the law in the past — if the case makes it back to that judge at all.
Clinics had vehemently opposed the move to send — or “certify” — the case to the Texas Supreme Court. The move had been requested by the defenders of Texas’ law.
In the opinion explaining why the 5th Circuit panel’s majority — Circuit Judges Edith Jones and Kyle Duncan — was sending the case to the Texas Supreme Court, Jones wrote that the US Supreme Court had used hedged language in its opinion determining that the case could move forward against the licensing officials.
The justices’ “reasoning bespeaks at least uncertainty and the need to defer to state law,” Jones wrote, referring to the relevant section of Justice Neil Gorsuch’s opinion where he was joined by other conservatives on the court.
US Circuit Judge Stephen Higginson dissented from the 5th Circuit’s order, writing that it was giving the defendants a “second bite” at an issue they had already lost at the US Supreme Court.
“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” Higginson wrote.
The clinics also have a petition at the US Supreme Court asking the justices to intervene again in the case, given how the 5th Circuit has handled it. The justices have not yet taken action on that petition.
