As I’ve repeated since May, so long as the 5th Circuit decides the case by the beginning-to-middle-of-November, a cert petition could be promptly filed, and absent an extension for the BIO by Texas, the case could be heard by the Supreme Court during the current term. Tonight, the 5th Circuit issued its long-awaited decision in Texas v. United States. Here is the schedule I laid out last a month:
Based on this year’s case distribution schedule, in order to make it onto the January 8 conference–which would allow for one relist, and be granted on January 15–the petition would have to be distributed (at the latest) on December 22. Assuming the SG waives his reply, or files one immediately, Texas’s brief in opposition would have to be filed before December 22, though more likely on December 20 or 19 to give the SG time to reply. This would mean the SG’s cert petition would have to be filed on approximately November 20 (this is where I think John got the November 27 estimate from). Therefore, the decision would have to come from the 5th Circuit towards the middle of November. But all of this math assumes a 30 day extension is not granted. Assuming Texas does get its 30-day extension, the brief in opposition would not be filed until some point in late January, which would put us on a conference in February. Last year, all cases granted on or after January 23 were scheduled for argument during the following term.
The brief in opposition must be filed 30 days after the case is “placed on the docket.” Therefore, if the cert petition is filed anytime between now and November 20 or so, Texas’s brief in opposition would be filed on or before December 22, and the petition could be distributed for the January 8 conference.
The only wild card is if Texas either (a) waives the brief in opposition, forcing the Court to order them to file one, and thus stretching the clock or (b) requests an extension, pushing us past the January 8 conference. But in all likelihood, this case will be argued the last week in April or the first week in May of 2016, with a decision in June 2016.
I should note that at the end of Judge King’s dissent, she faults the majority for not moving expeditiously:
I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.
Disclosure: I field a brief on behalf of Cato supporting the states.