The Volokh Conspiracy

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SCOTUS Splits 5-4 on Whole Woman's Health v. Jackson

Chief Justice Roberts dissented, and would have "preclude[d] enforcement of S. B. 8 by the respondents." But it isn't clear how the named respondents could enforce the law.


For the past 24 hours, I was carefully monitoring the Supreme Court's docket. I awaited an order in Whole Woman's Health v. Jackson. When midnight arrived on Texas Standard time, the Court was silent. It seemed the die was cast, but the Justices were finishing off their dissents. That order would arrive late Wednesday evening, nearly 24 hours after the law went into effect. The Court split 5-4. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett denied all relief. Chief Justice Roberts dissented, joined by Justices Breyer and Kagan. Justice Breyer wrote a dissent, joined by Justices Sotomayor and Kagan. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. And Justice Kagan dissented, joined by Justices Breyer and Sotomayor. (The last time I recall the Court had four separate dissents was Obergefell, but I may be missing a case).

I'll break down each opinion in turn.

Per Curiam Opinion

The majority understands the writ of erasure fallacy, which played a central role in California v. Texas.

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8).

I'm sure Justices Alito and Gorsuch chuckled with the citation to California. But this proposition is foundational: Courts enjoin individuals, and not laws.

And it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.

This appeal was only lodged against a single state court judge and a single court clerk. The District Court had not yet certified a class. Mark Lee Dickson's brief accurately explained the dynamics:

There is no certified class of state-court judges that can be enjoined, and there is no certified class of court clerks either, because the district court did not rule on class certification before the defendants appealed its jurisdictional ruling. The plaintiffs never address this problem, and they pretend as though their requested injunction can somehow extend beyond the named defendants to every other judge and court clerk in Texas—even though none of those individuals have ever been parties to this case.

Even if the Applicants received all of the relief they sought, every other judge in the state could entertain suits under S.B. 8. This case was a terrible vehicle for emergency injunctive relief. The dissenters glossed over this problem.

Chief Justice Roberts's dissent

Chief Justice Roberts would "grant preliminary relief" to maintain the status quo. What is that relief? Roberts does not say.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. 

A remedy to preserve the status quo would be impossible in this case, which only concerned one state court judge and one clerk. Roberts seems to recognize that the proposed remedy is impossible.

Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. See California v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 8). 

But he finds the "statutory scheme" to be "unprecedented." And unprecedented laws call for unprecedented remedies.

But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect. . . . I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court ofAppeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs' claims.

But what does it mean to "precluded enforcement" of a statute the named parties do not enforce? Not even the great and powerful Oz can blot out a statute from the books. The Supreme Court has no power to enter relief to parties who are not named in the case. And the named parties have no power to enforce this law.

Roberts did raise one legal question that law professors will study carefully..

These questions are particularly difficult, including for example whether the exception to sovereign immunity recognized in Ex parte Young, 209 U. S. 123 (1908), should extend to state court judges in circumstances such as these.

But now that the law is in effect, there is no need to sue judges.

Justice Breyer's dissent

Justice Breyer, like the Chief, does not explain exactly what relief he would grant.

The procedural posture of this case leads a majority of this Court to deny the applicants' request for provisional relief. In my view, however, we should grant that request.

"Provisional relief" doesn't clarify what the applicants would actually receive. Justice Breyer also recognizes that this unprecedented law calls for an unprecedented remedy:

I recognize that Texas's law delegates the State's power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

And he proposes several potential remedies:

It should prove possible to apply procedures adequate to that task here, perhaps by:

  1. permitting lawsuits against a subset of delegatees (say, those particularly likely to exercise the delegated powers)
  2. or perhaps by permitting lawsuits against officials whose actions are necessary to implement the statute's enforcement powers.

There may be other not-very new procedural bottles that can also adequately hold what is, in essence, very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right—an invasion that threatens immediate and serious injury.

In short, there must be some way to mount a pre-enforcement challenge to a law. Breyer ever cites Marbury!?

Normally, where a legal right is "'invaded,'" the law provides "'a legal remedy by suit or action at law.'" Marbury v. Madison, 1 Cranch 137, 163 (1803) (quoting 3 W. Blackstone Commentaries *23). 

Contra Marbury, not every right has a remedy. As I recall, William Marbury did not receive a remedy because the Court lacked jurisdiction.

Finally, Justice Breyer writes that the law runs afoul of Roe and Casey. S.B. 8 expressly incorporates the Roe and Casey standards. Defendants are expressly permitted to raise as an affirmative defense that the law, as enforced in a particular case, violates Roe and Casey. And that affirmative defense remains available until the Court overrules Roe and Casey. The six-week ban would only become operational if those precedents are overruled. At present, a suit against Whole Woman's Health premised on a six-week abortion would be barred. Thus, it is not technically accurate to say, as Justice Breyer does, that Texas's law runs afoul of Roe and Casey. Virtually every media outlet, and three Supreme Court Justices, have botched this distinction.

Justice Sotomayor's dissent

Justice Sotomayor makes no effort to recognize the writ of erasure fallacy. She writes that the law itself can be enjoined!

The Court's order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. 

Courts cannot enjoin laws, no matter how unconstitutional they are. Justice Sotomayor also misstates the nature of relief sough:

At a minimum, this Court should have stayed implementation of the Act to allow the lower courts to evaluate these issues in the normal course. Ante, at 2 (ROBERTS, C. J., dissenting).

The applicants did not seek a stay of the "implementation of the Act." That remedy would be impossible. Instead, they sought a stay of the Fifth Circuit's stay of the District Court's proceedings. Again, courts cannot stay the implementation of an act. Courts can only enjoin specific named parties from enforcing the law. If the progressives want a fifth vote, they should learn to speak the lingo. No fortune cookies or paper bags are needed.

Justice Sotomayor also faulted the Court for not ruling on Tuesday before midnight.

Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. . . . The applicants requested emergency relief from this Court, but the Court said nothing. The Act took effect at midnight last night.

If I had to guess, the majority's per curiam order was ready before midnight yesterday. The delay was needed to give the dissenters time to polish their separate writings. Indeed, Justice Sotomayor's dissent cites news articles published after midnight. This "silence" criticism rings hollow.

Justice Kagan's dissent

Justice Kagan uses the phrase "shadow docket" for the first time in Supreme Court history. (Justice Breyer used the phrase "shadow docket" in an interview last week). And, she is not a fan.

Today's ruling illustrates just how far the Court's "shadow-docket" decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence . . . . In all these ways, the majority's decision is emblematic of too much of this Court's shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.

Now the focus returns to the Fifth Circuit. This case may get back to the Supreme Court in the next week or so.

I did several TV interviews on Wednesday about the Texas case, including Special Report on Fox News. I will embed them after the jump.

You can see the difference between my hair at 10:00 a.m and 7:00 p.m.