I wrote two posts on the latest incarnation of United States v. Texas. Based on my read of the oral argument, I think the ultimate vote may be very fragmented. The Court's six conservatives are not on the same page. And the Court's three progressives will–as they always do when it counts–hang together. The bottom line is the lower-court ruling would be vacated, without a single five-member majority opinion. Here is my crude prediction, that should not be taken very seriously.
First, I think Justice Barrett has already signaled that Article III does not permit the remedy Texas sought–a vacatur. And if the court cannot issue an order that remedies the plaintiff's purported injury, then the court lacks jurisdiction. Thus, Barrett could toss the case on redressability grounds, without deciding whether Texas suffers an injury in fact. The Court followed this path in California v. Texas, which Barrett presaged in oral arguments. Justice Gorsuch also seemed to lean in this direction. These two judges, who were never part of the D.C. Circuit cartel, will have no problem casting doubt on decades of "drive-by" rulings.
Second, I think Justice Kagan will find that Texas's theory of injury is far too broad because it would allow a state to challenge almost any federal policy based on a $1 cost. Justices Sotomayor and Jackson also suggested that Texas's injury, if any, was self-inflicted. Kagan will likely distinguish Massachusetts v. EPA, but find Texas's theory, which has been used countless times since 2014, does not work. If the votes line up this way, there would be five votes to dismiss the case on jurisdictional grounds, and the lower-court ruling would be vacated. But there would be no change in governing law. The D.C. Circuit cartel can continue issue five vacaturs before breakfast. And the Fifth Circuit can continue to rely on the Texas theory of standing. In other words, a fragmented decision will keep the status quo on both questions.
