The Texas law banning abortions after six weeks will swiftly return to the U.S. Supreme Court, once again thrusting the justices and their so-called shadow docket into the cauldron of public debate, according to legal scholars and others.

When the case initiated by the U.S. Justice Department's lawsuit against Texas arrives at the Supreme Court, the justices likely won't face the constitutionality of the law itself, but another set of complex procedural questions in another emergency application by whoever loses in the lower appellate court.

The justices' use of their emergency docket, or shadow docket, has come under increasing scrutiny as they recently have acted on controversial issues, such as abortion, evictions, COVID-19 restrictions and immigration.

U.S. District Judge Robert Pitman of the Western District of Texas on Wednesday night issued a preliminary injunction temporarily blocking the Texas abortion law in the case, United States v. Texas. State officials already have filed a notice of appeal with the U.S. Court of Appeals for the Fifth Circuit.

When the case gets to the Supreme Court—and court watchers agree it is "when," not "if"—the justices will be seeing the law for the second time. On Sept. 1, a 5-4 majority in an unsigned order rejected abortion providers' request to stop the law from taking effect pending their appeal in the Fifth Circuit in the case Whole Woman's Health v. Jackson. The Fifth Circuit, which had refused to block the law, is not expected to hear that appeal before December.

The high court's majority in September said it was not expressing a view on the law's constitutionality, only that there were "complex and novel antecedent procedural questions," which did not justify blocking the law. Chief Justice John Roberts Jr. dissented, saying he would temporarily halt the law to allow the lower courts to consider those questions. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan also dissented.

Raffi Melkonian, an appellate partner at Houston's Wright Close & Barger, said he expects the Fifth Circuit to move quickly on the state's appeal of Pitman's injunction in the United States' suit.

"I can imagine Texas filing its motion for a stay, a very fast response, and an administrative stay being granted either later today or in the morning, if the panel is inclined that way," Melkonian said. "The panel could grant an administrative stay and then set up a briefing deadline for the real stay and make a decision pretty quickly. I think they would know what they're going to do by early next week."

Melkonian noted that Texas has asked the court for the same motions panel of judges that is handling the pending appeal in Whole Woman's Health. "I don't think you can ask for that and I'd be quite surprised if the same panel picked it up," he said.

The Supreme Court already has a major anti-abortion law scheduled for argument Dec.1. That case, Mississippi v. Dobbs, asks the justices to uphold the state's 15-week abortion ban and to overrule its landmark abortion rights precedents, Roe v. Wade and Planned Parenthood v. Casey.

"I don't think the court is going to decide the constitutionality of the six-week law before it decides the constitutionality of the 15-week law," Irving Gornstein, executive director of Georgetown University Law Center's Supreme Court Institute, said.

And the Dobbs decision will matter, Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said. "It is there that the court will overrule or modify or reaffirm Roe v. Wade," he said.

When the justices get the United States' case out of Texas, Gornstein and Chemerinksy agreed the legal questions would be procedural, much as the issues were in the justices' September action.

"The key issues are whether the United States has standing to sue and whether there is a cause of action for it to sue under," Chemerinsky said. "The district court is very thorough on these questions, but they are hard questions. I assume if the Supreme Court comes out the other way it will be on these issues."

And if the justices do disagree with the district court, he added, "that will be taken as a clear signal of five justices who do not want to block laws restricting abortions. If they allow the preliminary injunction to stand, it will lead to speculation about whether there is a majority to overrule Roe."

Some high court action is inevitable on the United States' case, Melkonian said. "They're going to have to do something about it because it is coming, one way or another."

Read more: