The Volokh Conspiracy

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Four Things Opponents of S.B. 8 Should Not Say

If you want to win before a conservative Supreme Court, you must learn to use the lingo of conservative Justices.


Consider this post a public service.

First, opponents of S.B. 8 should not say "the Court should have blocked S.B. 8." The appeal, as it came to the Supreme Court, involved a single judge in Tyler, Texas. Nothing the Supreme Court could have done would have "blocked" the law. Even an injunction against Judge Jackson would have been meaningless, as other Judges in Tyler could have heard the cases. I still have not seen anyone explain how the Supreme Court could have "blocked" S.B. 8, given that there was only one named judge in the case. Had the District Court used a single opinion to deny the motion to dismiss, certify the class, and grant the injunction, I think the situation would have been very different. But the judge's piecemeal approach allowed the government defendants to seek an interlocutory appeal based on the denial of sovereign immunity.

Second, opponents of S.B. 8 should not say "the courts will strike down S.B. 8." Courts do not strike down laws. If you have any hope of ever securing a fifth vote on this Court, you should erase this phrase from your vernacular. Courts can only issue enjoin named defendants, from enforcing specific statutes, against specific plaintiffs. If you have not yet committed the writ of erasure fallacy to memory, you are behind the curve. Jonathan Mitchell may have written the most significant law review article in a decade–and it has only 821 downloads on SSRN.

Third, opponents of S.B. 8 should not say that "S.B. 8 is unconstitutional." That statement is a non-sequitur. The correct statement is that "S.B. 8 is unconstitutional in a specific context." Given the law's intricate severability provision, a facial challenge is virtually impossible. Consider an example. Under present law, Texas could not prohibit abortions at six weeks. Indeed, the law incorporates Casey and Roe as an affirmative defense. But Texas could prohibit late-term abortions under Casey and Roe. S.B. 8 could not be used to impose liability for the six-week abortion, but S.B. 8 could be used to impose liability for a late term abortion. The law is valid in some contexts, but may be invalid in others. I also think it is risky to rely on the overbreadth doctrine, a principle in Free Speech law, which has come under attack by several members of the Court.

Fourth, eventually, some trial judge will find the law unconstitutional in a specific context. At that point, opponents of S.B. 8 still should not say "S.B. 8 is unconstitutional." That ruling would only bind the particular plaintiffs and defendants on those particular facts. Other plaintiffs, in other jurisdictions, with other claims, could sue the same defendants and reach a different result. This law is like a hydra: cut off one head, and two heads grow in its place.

If you want to win before a conservative Supreme Court, you must learn to use the lingo of conservative Justices.