The U.S. Court of Appeals for the 5th Circuit said last month that state judges are not proper defendants in lawsuits challenging the constitutionality of S.B. 8, the Texas abortion ban. Yet the preliminary injunction that Robert Pitman, a federal judge in Austin, issued yesterday bars state courts from hearing the civil actions authorized by that law, which bans abortions after fetal cardiac activity can be detected. The crucial difference, Pitman says, is that the earlier case involved private plaintiffs, while his injunction was a response to a lawsuit brought by the federal government.
The 5th Circuit's ruling dealt with Whole Woman's Health v. Jackson, a lawsuit in which Texas abortion providers and abortion rights supporters challenged S.B. 8, which prohibits the vast majority of abortions but leaves enforcement to private litigants. The law, which took effect on September 1, expressly bars state or local officials from enforcing its terms, instead authorizing "any person" to sue "any person" who performs or facilitates a prohibited abortion. It promises prevailing plaintiffs, who need not claim any personal injury or interest, "statutory damages" of at least $10,000 per abortion and reimbursement of their legal expenses.
The Jackson plaintiffs tried to get around this novel arrangement, which was designed to frustrate pre-enforcement challenges, by suing Smith County District Court Judge Austin Jackson, representing a proposed class of all state judges who might hear lawsuits authorized by S.B. 8. They argued that Texas judges would play a crucial role in enforcing the statute, since S.B. 8 lawsuits could not proceed without them. Pitman, who also heard that case, accepted the plaintiffs' reasoning, but the 5th Circuit emphatically rejected it.
"It is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law," the appeals court said. It cited Ex parte Young, a 1908 case in which the Supreme Court said state officials could be sued to stop them from enforcing allegedly unconstitutional laws. But the Court added that the right to seek a federal injunction against state officials does not include the right to stop a state court "from acting in any case brought before it." The 5th Circuit concluded that "Plaintiffs' position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers."
The appeals court also noted that "the Declaratory Judgment Act requires an 'actual controversy' between plaintiffs and defendants." But in Jackson, it said, "no such controversy exists," since "the Plaintiffs are not 'adverse' to the state judges." When "acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy."
The preliminary injunction that Pitman issued yesterday was a response to United States v. Texas, a Justice Department lawsuit that says the defendants include "all" of the state's "officers, employees, and agents" as well as "private parties who would bring suit under S.B. 8." The injunction bars state officials, including judges, from "accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit" authorized by S.B. 8. It adds that "private individuals' actions are proscribed to the extent their attempts to bring a civil action under [S.B. 8] would necessitate state action that is now prohibited"—including adjudication of their lawsuits.
That direct order to state judges seems hard to reconcile with the concerns that the 5th Circuit expressed in Jackson. But Pitman argues that Ex parte Young is not relevant to a lawsuit brought by the federal government.
That decision involved Minnesota Attorney General Edward T. Young's litigation against railroads that violated state rate regulations. The Supreme Court said the railroads, which argued that the regulations were unconstitutional, could seek a federal injunction against Young. But it said they could not seek an injunction barring state courts from hearing any lawsuits Young might bring. "An injunction by a Federal court against a State court would violate the whole scheme of this Government," the Court said, "and it does not follow that, because an individual may be enjoined from doing certain things, a court may be similarly enjoined."
That warning, Pitman suggests, does not apply here, since Ex parte Young carved out an exception to sovereign immunity. "Because state officials lack sovereign immunity protection in a suit brought by the United States," he writes, "this Court need not address whether their conduct falls within the Ex parte Young exception." In a footnote, he says "this Court is not constrained by the concerns expressed by the Fifth Circuit in Jackson, when it found no enforcement connection between the judges and court clerks and S.B. 8 under the rubric of an Ex parte Young analysis."
Florida International University College of Law professor Howard Wasserman, who co-authored a series of Volokh Conspiracy posts on the "procedural puzzles" posed by S.B. 8 with South Texas College of Law professor Charles Rhodes, says Pitman is right "to the extent [that] Young is about sovereign immunity." But he notes that the part of Young dealing with injunctions against judges "is about the scope of the cause of action," which "makes sense if the constitutional violation and thus the thing to be enjoined is enforcement by the executive" rather than "adjudication by the judge."
The "concerns expressed by the Fifth Circuit in Jackson" seem to go beyond the specific context of Ex parte Young, as did that decision's warning that enjoining state judges from hearing cases "would violate the whole scheme of this Government." When the appeals court said suing state judges to prevent enforcement of S.B. 8 is "antithetical to federalism," it was talking about federal interference with the operation of state courts, a description that clearly applies to Pitman's injunction.
In Jackson, the 5th Circuit called the argument for suing Texas judges "specious." Wasserman and Rhodes agree with that assessment.
"Judges have never been appropriate defendants in offensive actions challenging the constitutional validity of laws and seeking to enjoin enforcement," they write. "A court's judgment does not cause the constitutional injury—when a state-court judgment infringes on federal constitutional rights, federal district courts lack jurisdiction and the adversely affected party must appeal the judgment through the state judiciary before seeking SCOTUS review. It follows that a federal court cannot deprive the state judge of any opportunity to issue a judgment."
South Texas College of Law professor Josh Blackman, in a Volokh Conspiracy post about the Justice Department's case, suggests another reason why suing judges to prevent enforcement of S.B. 8 is "problematic": Codes of judicial conduct prevent them from responding to the federal government's claims. "State court judges must decline to opine on the constitutionality of the law," Blackman writes. "Were judges to defend the law, they would be forced to recuse. Given that they cannot defend the law, judges lack the requisite adversity for Article III standing. In other words, litigation against state judges is a sham."
Pitman cites Shelley v. Kraemer, a 1948 case in which the Supreme Court blocked judicial enforcement of restrictive covenants barring home sales to black buyers. Blackman thinks reliance on that decision is misplaced in this context. "I've never been persuaded by the Shelley v. Kraemer argument," he says. "The state action in that case involved private citizens going to court to enforce a discriminatory covenant. But there is no allegation [in United States v. Texas] that judges would enforce an unconstitutional statute. We presume judges will follow the law. If a state judge tries to enforce an unconstitutional statute, there may be a place for federal courts to intervene. But a remedy at this point is premature."
This whole situation is understandably frustrating to abortion-rights advocates, since S.B. 8 is plainly inconsistent with Supreme Court precedents and fear of litigation already has sharply restricted abortion access in Texas, where clinics have dramatically curtailed their services. But the 5th Circuit seems likely to overrule Pitman, based either on the propriety of enjoining state judges or the federal government's standing to bring a lawsuit at this stage.
No one disputes that constitutional objections to S.B. 8 can be raised once private litigants try to enforce it. That route will take longer, but it is the most promising way to achieve the broad and lasting relief that the law's opponents want.