Thread by @steve_vladeck

Last night's 5th Cir. ruling in Whole Women's Health (ca5.uscourts.gov/opinions/pub/1…) is another example of the phenomenon I tweeted about last week—conservative judges subordinating settled law to their own policy preferences, however compelling they may be.

A quick #thread on why:

https://twitter.com/steve_vladeck/status/1017035443999830017

1. The underlying dispute in the case is over a third-party subpoena issued by the plaintiffs (abortion providers) to the Texas Conference of Catholic Bishops (TCCB) as part of their challenge to #SB8. TCCB sought to quash the subpoena, and ultimately lost in the district court.

2. TCCB then sought appellate review of the denial of its motion to quash. Without reaching the merits of its claims that the subpoena violates the First Amendment and the Religious Freedom Restoration Act, Judges Jones and Ho agreed, holding that the subpoena was overbroad...

3. But as #SCOTUS held (unanimously) in 2009, such rulings by district courts can't be immediately appealed under the "collateral order doctrine," because otherwise, discovery disputes could be appealed piecemeal, defeating the text of 28 U.S.C. § 1291:

law.cornell.edu/supct/html/08-…

4. To be sure, a party like TCCB could defy the subpoena (and appeal a contempt citation), or seek an extraordinary writ of mandamus to protect its privilege.

But the bar for mandamus is _much_ higher—requiring the claimant to show a "clear and indisputable right to relief."

5. Here, however, Judges Jones and Ho held that the denial of the motion to quash _was_ immediately appealable, purporting to distinguish Mohawk (and other circuits' rulings) based on the significance and unsettled law surrounding TCCB's First Amendment claim as a third party.

6. The problem, as Judge Costa's dissent notes, is that the majority didn't actually _resolve_ TCCB's First Amendment claim.

Instead, it used the specter of that concern to conduct ordinary appellate review of the subpoena's compliance with the Federal Rules of Civil Procedure.

7. In the process, the majority thereby subverted settled law on what kinds of discovery orders are immediately appealable, and subjected the district court to review that shouldn't normally be available, at least in this form, at this stage of a civil case.

8. Reasonable folks may disagree about the strength of TCCB's interests here; I don't mean to take a position on that, or, like the majority, on whether the First Amendment actually protects it from having to comply with this kind of third-party subpoena...

9. My point is instead to show how conservative judges routinely do exactly what too many commentators lazily assert only their progressive counterparts do: Allow for their policy preferences to justify incursions into—and departures from—settled statutory and judicial doctrine.

10. Where, as here, such rulings come in the wonky but important context of interlocutory appellate jurisdiction, it means that these judges are _literally_ exceeding their statutory authority in order to do so:

lawfareblog.com/judge-wilkinso…

Talk about "judicial activism"...

/end