The Supreme Court has just vacated the Fifth Circuit's stay of a district court's preliminary injunction against HB20, Texas's new social media law by a 5-4 vote. Justice Alito (joined by Justices Gorsuch and Thomas) wrote a dissent. (Justice Kagan also noted that she would deny the stay, but did not say why.) I'm sure that these issues will go to the Supreme Court reasonably soon and that others will have much to say on the merits. (I note that the dissent cites Eugene's recent article on social media companies as common carriers.) But I wanted to flag a little procedural question about how the Court handles these applications.
When the Supreme Court grants these applications, one of the things it is supposed to consider is the likelihood that the applicant will eventually succeed before the Supreme Court. This is especially tricky because the Supreme Court has a lot of degrees of freedom. It can overturn and distinguish its own precedents in a way that lower courts don't feel free to do. How should that factor in? Should the Court consider the cases under "existing law" or under what it thinks the law should look like after it decides the case?
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