Late on Friday, the Supreme Court issued an order in the Juliana case vacating the stay issued by Chief Justice Roberts two weeks ago and denying, without prejudice, the Trump Administration’s application for a stay pending the application for writ of mandamus. This decision means that the case, formerly scheduled to begin an estimated two month trial on October 29th in the District of Oregon, can once again be slated for a trial date.

Citing the per curiam opinion in Hollingsworth v. Perry, 558 U.S. 183, 190 (2010), a stay is warranted if there is (1) “a fair prospect that a majority of the Court will vote to grant mandamus” and (2) “a likelihood that irreparable harm will result from the denial of a stay.” According to the government petition, the litigation is beyond the limits of Article III, since the allegations about rights to maintain climate conditions at a certain levels are rights that have not be enumerated before. The Court does note that the claims are quite broad and could result in “substantial grounds for difference of opinion.”

However, the Court feels that it is inappropriate to issue a writ of mandamus since there is not a “fair prospect” of success in the Court and more importantly, because there is still the possibility for relief in the Ninth Circuit Court of Appeals. The Court says that since the option for a writ of mandamus is available at the Ninth Circuit, the government would need to show why relief is not possible in that court. Although the Ninth Circuit has twice denied the request for mandamus, both times the denial was issued without prejudice, so the government could file a new petition at any time. Additionally, the grants were largely denied because the litigation was in a very early stage and the court was allowing time to see if the plaintiffs’ claims narrowed or if the case would be disposed of through traditional means.

So the trial should be rescheduled for the calendar. The only thing that is clear from the order issued on Friday is that the appropriate process must be observed before the Supreme Court will ultimately step in. It is unclear what position the Court would take if the case does ultimately arrive at its doorstep; however, it is clear that the Justices are keeping a close eye on the proceedings. Of note, Justices Gorsuch and Thomas would have apparently granted the petition for mandamus filed by the government at this time, signaling that at least two members of the Court feel that the claims are perhaps outside of the scope of the Article III powers of the courts.