Justice Brett Kavanaugh’s June opinion rejecting the legality of an earlier Centers for Disease Control and Prevention eviction moratorium largely fueled skepticism about the legal legs of the most recent one. But Kavanaugh is likely the justice who will determine the latest order’s fate.

The big question is whether he will find the order issued on Tuesday different and supported by more evidence that it falls within the CDC’s statutory power. The justices may have to answer that question sooner rather than later. A group of landlords, represented by Jones Day, on Wednesday challenged the latest moratorium in federal district court. The government has been ordered to respond on Friday.