Supreme Court vs. Rule of Law

Great take from Jonathan Bernstein:

Those of us who believe that Roe v. Wade was correct when it gave women a constitutional right to abortion in 1973 are obviously unhappy with the Supreme Court’s “shadow docket” decision to de facto overturn it — or, as Dahlia Lithwick put it in Slate Wednesday evening, Roe was “overruled this week, or nullified, or merely paused for a few million people.”

But well beyond that: Procedure matters, and the ad hoc, unjustified procedure in this case — procedure that produced a sharp and compelling dissent from Chief Justice John Roberts, who may eventually join a majority to destroy or overturn Roe — may have done as much to undermine the rule of law as anything we’ve seen in these last years of threats to constitutional government. 

It simply can’t be the case that state governments can eliminate established constitutional rights by structuring laws so that they must go into effect, thus robbing people of those rights, without the courts having any option of stopping them. That’s what Texas and a handful of judges have done in this case, and it’s wrong and it’s lawless even if Roe was incorrectly decided and the Texas law — which effectively puts abortions off limits after six weeks of pregnancy by giving citizens the power to sue anyone who “aids or abets” them — would eventually be upheld (for more detail, see Rick Hasen’s reaction). 

The courts are a political branch. They always have been. They’re supposed to be. That’s not a problem. 

But there are implicit but important rules about how they are political. Precedents can be overturned. They can be evaded so many times and so many ways that they no longer exist. They cannot simply be ignored. Justices can be partisan — there’s nothing new in that — but they need to cloak it in proper form, and proper procedure. They can’t simply say that they are ruling such-and-such a way because they are Republicans, or because that’s the outcome they want. Nor can they veil it so thinly that they might as well say so explicitly. 

Or, that is, they can — but in doing so, they behave improperly, and threaten not only the legitimacy of the judiciary but of the entire system. A five-Justice majority that essentially says they’ll do whatever they want because they have five votes and tough luck to anyone else — and yes, that’s basically what the Court did in this case and has done or come close to doing in others — is acting lawlessly, full stop. In doing so, these five Justices are inviting everyone else in the political system to simply do whatever they have the power to do, whether it’s overturning elections, packing or stripping jurisdiction from the courts, or whatever else they can get away with. 

The rule of whoever has the votes can do whatever they want is not constitutional government. 

And a great thread from Rick Hasen.


Is this how legal abortion ends? Not with a bang, but a whimper?

Legal abortion is almost completely outlawed in Texas as of today.  That’s not hyperbole, but the actual reality.  States pass laws banning and severely curtailing abortion all the time, but heretofore they have always been struck down by federal courts for being in clear violation of existing precedent from Roe v. Wade and Casey v. Planned Parenthood (most prominently).  Until yesterday.  In work that I think honestly might best be described as legal evil genius (honestly, regardless of one’s take on abortion, the way in which this was crafted to try and avoid judicial scrutiny deserves that appellation), a Federal Appeals Court and, now the Supreme Court, has essentially let Texas ban abortion without even making a ruling.  It’s complicated, but Ian Milhiser has a great explanation of exactly what’s going on in Vox (really, you should just read the whole thing):

In one sense, the fight over Texas’s anti-abortion law, known as SB 8, is familiar. A Republican-led state enacted a restriction on abortion that violates existing Supreme Court precedents. Pregnant people in the state lost access to reproductive health care — in this case, many clinics had already reduced abortions even before SB 8 took effect. Meanwhile they, and the rest of us, had to wait to see if an increasingly right-wing judiciary will enforce its past decisions or continue to chip away at that precedent.

The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.

The stakes in this case are astronomical. Six weeks into a pregnancy is often very soon after a pregnant person misses their first menstrual period. So they may not even be aware that they are pregnant until it is too late. According to the abortion providers who are suing to block SB 8, at least 85 percent of abortions in Texas take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.

And the stakes in Whole Woman’s Health stretch far beyond abortion. SB 8 was drafted to frustrate judicial review before the law took effect. Now that the Supreme Court appears to have embraced this tactic, other states could copy it, potentially allowing states to enact all kinds of unconstitutional practices that can’t be challenged until after an unconstitutional law takes effect.

But by refusing to stop a law that violated decades-old precedent protecting the constitutional right to an abortion, the Court effectively did change that precedent…

SB 8 was drafted to prevent courts from reviewing it

SB 8 is a truly bizarre law.

The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.

For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.

But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.

Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”

Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.

SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law. Checkmate, libs.

Here’s how crazy this gets:

If the justices continue to do nothing in this case, they are effectively choosing to rewrite the nation’s abortion jurisprudence without receiving full briefing, hearing oral argument, or taking more than a couple of days to even consider the case.

Just as significantly, they will bless a tactic that could be used to undermine virtually any constitutional right. Imagine, for example, that New York passed an SB 8-style law allowing private individuals to bring lawsuits seeking a $10,000 bounty against anyone who owns a gun. Or, for that matter, imagine if Texas passed a law permitting similar suits against anyone who criticizes the governor of Texas.

Procedural rules exist for a reason. They ensure that every litigant has an opportunity to have their case heard, even if the litigant ultimately does not prevail. They also ensure that courts do not hand down haphazardly decided cases that could impact millions of people.

Talk about a Pandora’s box!  And this is not hyperbole.  These are the exact same legal principles.  A couple of law professors had a great Op-Ed on this (I quick-hitted it, hope you paid attention) back in July:

Not only has Texas banned virtually all abortions after the sixth week of pregnancy, a point at which many women do not even know they’re pregnant, it has also provided for enforcement of that ban by private citizens. If you suspect that a Texan is seeking to obtain an abortion after the sixth week of pregnancy, not only will you be able to sue the provider to try to stop it, but if you succeed, you’ll also be entitled to compensation. (And what’s known as the litigation privilege would likely protect you from a defamation claim even if you’re wrong.) The law, known as S.B. 8, effectively enlists the citizenry to act as an anti-abortion Stasi.

All of that would be problematic enough, but enlisting private citizens to enforce the restriction makes it very difficult, procedurally, to challenge the bill’s constitutionality in court. A lawsuit filed in federal court in Austin last week tries to get around those roadblocks. We believe that it should succeed. But if it fails, not only would that leave the most restrictive anti-abortion law in the country impervious to constitutional challenge, it would also encourage other states to follow Texas’ lead on abortion, as well as on every other contested question of social policy.

California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on…

In the abstract, allowing citizens to help enforce the law is nothing new. Many states have so-called citizen suit or private attorney general provisions that allow people to help enforce a range of laws and rules governing consumer and environmental protection, government transparency and more. The federal government authorizes citizens to help bring certain fraud claims on behalf of the United States — and allows those citizens to share in any damages that the government receives. The critical point in both of those contexts is that citizens are supplementing government enforcement.

The Texas law, by contrast, leaves private enforcement as the only mechanism for enforcing the broad restrictions on abortions after the sixth week of pregnancy. It specifically precludes the state’s attorney general or any other state official from initiating enforcement. Under this new law, private enforcement supplants government enforcement rather than supplements it. If this seems like a strange move, it is. And it appears to be a deeply cynical one, serving no purpose other than to make the abortion ban difficult to challenge in court.

That last sentence gets bold and italics because that’s a real key here.  This is extraordinarily bad faith.  I’m actually quite okay with people thinking abortion should be legal and trying to influence policy that way through open and good faith political means.  Turning our whole notion of laws upside-down (only enforced through civil suits?!) or writing transparently bad faith laws– e.g., arguing abortion clinics need really wide hallways for women’s safety, not so that it will close abortion clinics– is just not how policy should happen in a democracy. 

Milhiser has more about how this is definitely not over.  But, for now, conservatives get their way, there’s almost no legal abortion in Texas, and there’s not even been a SC hearing on the issue.  That’s nuts.  Also, it’s just a super-stealthy way to enact a massive policy change.  NYT actually has this as the lead story, but due to the way it happened, check out the CNN and WP coverage as of 10p last night (I had to shrink the Post to get down that far)


A state successfully outlaws abortion for the first time since Roe v. Wade and it’s basically below the metaphorical fold.  The Political Scientist in me is going to be fascinated to see how this develops and it may well be a major, major issue in 2022 that has serious electoral impacts.  

Oh, and just before publishing, came across this tweet from Steve Vladek, one of the Op-Ed authors, that is spot-on:

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