Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars? The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.
Alito acknowledged the lower court’s “frustration with the Government” as well as the “serious concerns about nonpayment for completed work.” However, he noted that this is “quite simply, too extreme a response. A federal court has many tools to address a party’s supposed nonfeasance. Self-aggrandizement of its jurisdiction is not one of them.”
The key here is that this was a controversial move to review a TRO, which is generally not reviewable. What is clear is that there are four justices who were still prepared to do so and would obviously be likely to grant review in the next round.
That next round would come after the hearing on the preliminary injunction, which is scheduled for March 6th.
It can then be appealed to these awaiting justices. Only four are needed to grant review, so you do the math.