"Splitting 5 to 4, the Supreme Court... refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state."

Lyle Denniston explains the issues and the votes:

The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.


The majority specifically included Justices Antonin Scalia, who wrote separately in a concurring opinion joined by Justices Samuel A. Alito, Jr., and Clarence Thomas.  But Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy presumably voted with those three, because it would have taken five votes to act definitively on the plea by doctors and clinics when there were four Justices who wanted to block the law....

Justice Stephen G. Breyer wrote for the four dissenters, including Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Here's the opinion PDF.

Scalia, writing for the majority, says that the Court can only vacate the stay if the Court of Appeals clearly erred in staying the district court's injunction. The Court of Appeals had to consider whether the party seeking the stay is likely to succeed on the merits, whether that party will be irreparably injured without the stay, whether others would be injured by a stay, and the public interest. In Scalia's view, you can't find clear error in the way the Court of Appeals analyzed those factors.

Breyer looks at the practical reality here. Either Texas must wait to start enforcing its new law (which might be constitutional), or doctors are going to have to close down clinics right away to meet the new requirement (which might be unconstitutional). Whatever proper ends Texas might have in its requirement that doctors have hospital admitting privileges, the harm in waiting a while for that to apply is much less than all of the change to the status quo.

Keep in mind that deterring women from having abortions is not a proper end under the case law. If that's what the law is really doing, counts toward finding an "undue burden," which is what would make the law unconstitutional.  The law needs to be justified as an improvement in health care, and so the injury that Scalia and Breyer are talking about is only the loss of improved care pending the litigation. On the other side of injury equation, there are all those clinics that must close, restricting access to abortion.

"In a surprise development," the Supreme Court took another affirmative action case.

Just now, the Court "agreed to decide whether a state may constitutionally ban the use of race in deciding who gets admitted to public colleges or universities."  This is huge, considering that there is currently a pending affirmative action case — dealing with the peculiar situation at the University of Texas that makes some use of race. "

"The new case is significantly broader," Lyle Denniston says.

ADDED: Here's a report on the 6th Circuit decision from last November. I don't think it's actually surprising that the Supreme Court took this case.

In an 8-7 decision, the court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden to opponents who would have to mount their own long, expensive campaign through the ballot box to protect affirmative action....

The court said having supporters and opponents debate affirmative action through the governing boards of each public university would be much fairer than cementing a ban in the constitution, which it referred to as home of "the highest level" of public policy.

This issue is about the political process for adopting a policy when it is within the range of what can be done through majoritarian decisionmaking — not about whether affirmative action is beyond majoritarian decisionmaking. So I don't agree that this case is "significantly broader" than the University of Texas case. Both cases could be resolved with a big decision prohibiting affirmative action, but both present narrow questions. The Court's taking this new case doesn't mean something big is necessarily brewing, so I retract my "This is huge." I think the UT case could be huge, but taking this additional case doesn't add much reason to suspect that it will be.