New Op-Ed in Newsweek: The Supreme Court Could Not "Block" Texas's Fetal Heartbeat Law

President Biden is wrong: The Supreme Court lacks the “supreme authority to ensure justice could be fairly sought.”

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Today, Newsweek published my column, The Supreme Court Could Not "Block" Texas's Fetal Heartbeat Law. In about a thousand words, I try to debunk every false accounting of Whole Woman's Health v. Jackson–and there have been many.

Here is the introduction:

On Wednesday, the Supreme Court declined to intervene in a challenge to S.B. 8, Texas's new abortion law. This unique statute empowers private citizens to sue those who perform or facilitate abortions. President Biden ripped the 5-4 decision, charging that the conservative Justices followed "procedural complexities" "rather than use its supreme authority to ensure justice." Biden is wrong. The Court has no majestic power to "ensure justice." Indeed, it is a myth that courts can "strike down" laws. Rather, judges have a very limited power: to prevent specific government officials from enforcing laws against specific people. The judiciary cannot simply erase statutes from the book. And when the government plays no role in enforcing a statute–like with S.B. 8–courts cannot "block" that law from going into effect. In future cases, the courts can assess the constitutionality of S.B. 8. For now, the Supreme Court was right to reject the premature challenge.

And from the conclusion:

Why, then, did the dissenters offer a remedy that simply could not be granted? This quartet endorsed President Biden's mythical account of the Supreme Court. At least three of the four dissenters deeply felt that this law was unjust, so there must be a way to stop it. But not every wrong has a remedy in federal court. In time, actual Texans will file suit against abortion clinics, and those who fund the organizations. And the courts can then decide if those suits are consistent with Roe v. Wade. For now, the Supreme Court was right to stay on the sidelines.

If you think my conclusion is hyperbole, read Noah Feldman's new column. He writes that the Court "made a point that is incorrect in my view, but that is legally plausible." Why was it incorrect? Feldman explains, "The better view is that the court should have been creative and found a way to block the law anyway." And why should the Court have gotten creative? Feldman writes, "if the underlying law is unconstitutional and injures basic rights, the courts must have the power to block its operation." If there is a really bad law, the usual rules of jurisdiction can be ignored, because the court "must" be able to do something about it. I always appreciate Feldman's candor. He says aloud what others are thinking. Unfortunately, telling courts to be "creative" is to tell courts to–pardon my French–"make shit up."

I have yet to see anyone explain how a case that involves a single named judge could be used to block the enforcement of a law by hundreds of judges statewide, who have no role in enforcing the law. For good reason, Roberts does not explain how his injunction would work. None of the dissenters can. Justice Breyer's proposals make no sense at all. I am grateful Justices Kavanaugh and Barrett stuck to first principles.

Not all constitutional wrongs can be righted by the judiciary. The breadth of Feldman's proposed solution harkens back to the Bob-the-Builder ethos of the Warren Court. Can we fix it? Yes we can!

Sing along! John G. Roberts! Can we block it? John G. Roberts! Yes we can!

NEXT: Today in Supreme Court History: September 3, 2005

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  1. You mean it wasn’t because SCOTUS is all Roman Catholic GQPers?

    1. Half the dissenters are also catholic…

    2. I am torn about this decision.

      It can be copied across the country, by many states, to address abortion. It can be copied across many legal subjects to set the tort vigilantes on our social problems, the stinking lawyer profession, criminals, shady business practitioners. I have always supported self help, as the sole effective remedy in the law, but that involved physical measures. This form of self help involves litigation, which is better than violence.

      Then, we have a total snitch culture, where the annoying little bitches seeking a payday, minding other people’s business, need to be killed.

      1. The law has already proven my point about unauthorized industrial policy by the stinking, failed, lawyer profession.

        Liability shrinks a business, like manufacturing, and now abortion in Texas. Immunity grows a business, like government.

        1. In addition, Democrats are over-represented in abortion babies. We will be getting more Democrats, and all their social pathologies and horrible judgement from this law.

          1. Democrats can be made to calm down by telling them, the ruling will result in more cheating voters for the Democrat Party, more diverses, more thugs, more crime. They love that shit, will stop getting all intense.

      2. The question isn’t (yet) whether the law will be struck down. The question is whether there can be an injunction in the meantime.

  2. What a novel theory.

    Any state can use this Blackman-certified method to pass laws abridging Constitutional rights, and these laws will stay in effect until, maybe, they reach the Supreme Court in a way that Blackman approves. So Constitutional rights can be abrogated with no problem, because “not every wrong has a remedy in federal court. ” The very real damage done in the meantime is of no concern to soi-disant Constitutional geniuses like Josh Blackman.

    This is idiocy. The majority here just likes the law, and Blackman just thinks it’s oh so clever and wonderful. That’s all.

    What an ass. He dances and gloats over his “victory,” while this odious law remains in force.

    1. As soon as the law is actually used, it can be judged unconstitutional, and quickly so.

      1. Really? And how long will that take?

        Besides, the law is already being used. Clinics are refusing to perform abortions after more than six weeks into a pregnancy. Women are not seeking them. Presumably no sane taxi driver, or anyone else, would give a woman a ride to a clinic. I wonder about bus drivers. Maybe they won’t be held liable, but they may have to defend themselves, with no recourse if they “win.”

        It doesn’t take an actual court case for the law to be “used.”

        1. On the Reason side of this site, the columnists have been making excuses for years that it’s not an infringement if it’s done by private parties.

          This is where we end up. Libertarian victory! /s

          1. the columnists have been making excuses for years that it’s not an infringement if it’s done by private parties

            I believe you’re referring to things like private parties (Facebook, Twitter) not being bound by the 1st Amendment and being allowed to regulate certain speech within their own property.

            This law is 100% an action by the Texas government, that they’re enrolling private parties as enforcers doesn’t count as a loophole to let you avoid the US constitution (unless of course if your the SCOTUS).

            1. Ah, but facebook and twitter are regulating speech at the urging of politicians.

              1. [Citation needed.]

                Yes, you can find examples of such urging. Can you find any examples of Facebook or Twitter saying, “We don’t want to moderate this, but we have to because we’re scared of politician X”?

        2. “Clinics are refusing to perform abortions after more than six weeks into a pregnancy. Women are not seeking them.”

          Horrible!

        3. “Clinics are refusing to perform abortions after more than six weeks into a pregnancy. Women are not seeking them.”

          Horrible!

        4. “Clinics are refusing to perform abortions after more than six weeks into a pregnancy. Women are not seeking them. ”

          Fantastic!

        5. ‘Women are not seeking them. Presumably no sane taxi driver, or anyone else, would give a woman a ride to a clinic. I wonder about bus drivers’ You need not prove that you don’t understand enforcement versus imagined impact in each such argument, it is clear that you are biased

          1. And you don’t understand the meaning of the word “imagined,” among many other things.

            And you’re perfectly unbiased? Fuck off.

        6. Planned Parenthood has about $2.3b in assets according to their recent report. They made a profit in that same report. They chose to close shop despite being able to afford losing many lawsuits under this law. I’m guessing that was for PR and fundraising purposes and they will soon resume abortions in Texas, get sued, and get an injunction. It is pretty unlikely that this 6wk no exceptions bill survives what happens next.

      2. “As soon as the law is actually used, it can be judged unconstitutional, and quickly so.”

        It can, but the law says that you can’t rely on current court decisions. You can be held liable for abortion stuff that you do now if, at some point in the future, precedents banning the law’s enforcement are overturned.

        AFAIKT, this is a problem with relying on court precedent even outside of the context of the current law. If Roe is overturned and someone were prosecuted in a state other than Texas for violating a dormant abortion law, I’m not sure what the defense would be.

        1. “You can be held liable for abortion stuff that you do now if, at some point in the future, precedents banning the law’s enforcement are overturned.”

          Sure, and at the time they try enforcing that, it will be struck down so hard the Texas legislature is feeling a twinge from it right now.

          1. That’s certainly possible. On what grounds?

          2. Sure, lower courts will block its enforcement when a citizen attempts a lawsuit. But, who knows what SCOTUS will do. In the meantime as bernard pointed out, the possibility that SCOTUS may uphold the law has greatly cut back on abortion services in Texas.

    2. The repubs in TX have unleashed the beast. Watch now as (D) controlled state legislatures start using similarly difficult-to-attack (up front) laws against things the repubs cherish…

      1. The Sue Your Neighbour For Owning A Gun Act of 2021…

        1. Why dial it back to that? sue your neighbor for supporting anyone who has ever owned a gun. It’s about morality.

      2. “Watch now as (D) controlled state legislatures start using similarly difficult-to-attack (up front) laws against things the repubs cherish…”

        Do it.

        Your side keeps wagging this threat. Its not as frightening as you claim.

        1. I haven’t lived in a “blue” state for a couple of years, but I’m finding it hard to believe that even the bluest of states will be making holding weddings in churches a crime. Everyone knows those “religious” marriages aren’t REAL marriages.

          1. I want a bounty placed on every tort and on every family law lawyer. Hunt them. Sue them, Make $10000 for each you bag.

        2. You’re a nihilist, you don’t even care either way.

          If America falls, that’s just another owning of the libs to you.

          I continue to hope Dems have restraint, mitigate as best we can, and let the political chips of this fall where they may.

        3. “Your side keeps ”

          Which side do you perceive to be *my* side?

    3. Why don’t you do what the four dissenters didn’t, and couldn’t, do: show how you would block the law?

      1. Breyer said you could permit

        lawsuits against officials whose actions are necessary to implement the statute’s enforcement powers.

        Thus, certify all Texas judges who can preside over a case as a class, sue them in a pre-enforcement action, and obtain injunctive relief against them as a class.

        1. Wouldn’t they have absolute immunity for their actions in their official capacities?

          1. Immunity from damages

          2. I strongly suspect Breyer would argue Ex Parte Young applies to these judges in the same manner it applies to a state attorney general.

        2. Since when can a Supreme Court decision initiate lawsuits?

          IOW, you haven’t proposed a possible solution either.

            1. “sue them”

              How do you propose to do that in a Supreme Court verdict?

            2. The question is not what a new legal strategy could be, but what this verdict could have done. Everyone sneering at Josh for being short-sighted, or at the majority for wringing their hands and doing nothing, has failed to propose anything else the verdict could have done. Including you and the dissenters.

              1. If the plaintiffs were successful in the suit, there would be an injunction against all judges in the state of Texas from hearing any cases.

          1. I’m not sure you’re following. One of the theories for relief that the plaintiffs sought in this very lawsuit was the sort of class action Josh R. is endorsing. So to the extent you think that procedural vehicle was proper, it’s fair to criticize the Supreme Court for not permitting it.

            1. “not permitting it.”

              The Supreme Court denied a stay of the statute going into effect, it did nothing about possible future remedies under the lawsuit.

              The district court has not considered class certification, let alone granted it yet.

        3. Yeah. And if a class of Texas judges had been certified as defendants, maybe the Court could have granted effective relief. But that wasn’t done, and the Court had no business acting as if it had been.

      2. “Why don’t you do what the four dissenters didn’t, and couldn’t, do: show how you would block the law?”

        It’s already blocked, until the Supreme Catholics get around to overturning Roe. Or are we going to do the same thing with Roe that we did with Korematsu, where everybody more-or-less agrees nowadays that Korematsu was wrongly decided, and then never actually gets overturned. (you know, in case we change our minds again). Surgical abortions are performed surgically, by surgeons, but medical abortions are performed by swallowing a pill. I suspect that information about how to do it medically will become more well-known in Texas, as everybody starts pretending there aren’t any more abortions there.

      3. This just doesn’t seem so hard, or even “creative.”

        Name one or more judges as a defendant. As others have mentioned, “absolute immunity” is relevant to money damages, not to injunctive relief.

        OR

        Find one organization that has loudly and publicly announced that it wants to be a leader in privately enforcing the new law. Name that organization as a defendant.

        OR

        Sue the attorney general to prevent enforcement of constitutional judgments. After all, Texas might have privatized its prosecuting authority, but it still has its own power to execute any judgments that a private prosecutor obtains.

        Regardless of approach, once the Supreme Court has made a decision in a single case involving one defendant, state-court judges are bound through vertical stare decisis.

      4. “Why don’t you … show how you would block the law?”

        It appears from the threading that this comment was directed to my comment. If this is not correct; apologies.

        But if so, I don’t believe anything I said indicated I thought the law could be legally blocked.

        In fact, I agree with Josh that there’s no legal way to do it. The only solution would have been for the SCt to have “pulled a[nother] ‘penumbra’ from its backside”. Not a desired outcome.

    4. Meanwhile in the real world what you want is beyond the power of the Court. They are not a super powerful unlimited body.

      Personally I could not give a damn one way or the other about abortion, but the implications beyond this for all Constitutional Rights scares the hell out of me.

      Whoever crafted this law is both legally brilliant and extremely dangerous.

      1. “Meanwhile in the real world what you want is beyond the power of the Court. They are not a super powerful unlimited body.”

        All they have is the full judicial power of the United States.

        1. Which is not unlimited. Contrary to belief the judiciary cannot simply proclaim whatever they want to bring about a desired outcome.

          1. Currentsitguy, seems like they can, until:

            1. Congress figures out some way to stop them, and;

            2. Mobilizes the political will to do it.

            My guess? Joe Biden will shortly discover he isn’t as opposed to court packing as he previously expected to be.

            1. My guess? Joe Biden will shortly discover he isn’t as opposed to court packing as he previously expected to be.

              Doesn’t matter one way or the other, unless Joe Manchin changes his mind.

    5. Perhaps the answer lies in a more timely challenge to the law?

      “Plaintiff abortion providers waited nearly two months—until July 13—to file their complaint, and it wasn’t until nearly a full month later, on August 7, that they filed a motion for a preliminary injunction.”

      1. “Perhaps the answer lies in a more timely challenge to the law?”

        It was written to avoid timely challenges.

        1. it was passed in May.

    6. So sad when leftists learn the rules they use to oppress everyone also apply to them.

      1. These are new rules.

        You would end this Republic declaring that it’s just giving the libs their own medicine.

        1. “These are new rules.”

          No, its a slight extension of the “private attorney general” provisions around since the 1960s.

          Are you calling for the repeal of those laws?

        2. “You would end this Republic declaring that it’s just giving the libs their own medicine.”

          Leftists don’t treat it like a republic. Want to keep a republic? Then start treating fellow Americans like fellow Americans and start treating laws and the Constitution like they apply to all.

          But I don’t think you want to keep it if it means people who are not like you get to decide anything about their own lives or that they get to participate in government or public life in any meaningful way.

    7. Courts of equity were established to prevent such chicanery, and to provide a remedy when the strictness of the law prevented one.

      As long as the federal courts posses equitable powers, they can craft a solution in furtherance of justice. At least, that was how it was “originally understood.”

  3. All that said, the whole thing seems less like an actual law and more like just an excuse.

    I dare you to sue me. I double-dog-dare you!
    Oh, you did? Sorry, case dismissed, which is what the law says I must do.

    Lord, don’t we have enough troubles already without making up things like this that just cloud the waters further? I get that it pokes Planned Parenthood in the eye, and sure, they deserve it times 10, but this isn’t serious.

    Stop the posturing.

    1. “I get that it pokes Planned Parenthood in the eye, and sure, they deserve it times 10”

      Those bastards have been working for literally decades to make sure that children are only born to people who wanted to have children. They get what they deserve for all those years they spent, trying to foist abortions on people who didn’t want them, even going so far as to try to get laws passed mandating abortions.

  4. No reason for hysteria, or glee either one.

    This law, in and of itself, seems highly unlikely to prevent a single abortion. It is, of course, an example of the vectored persistence which has served the left so well over the past 75 years.

    1. This law, in and of itself, seems highly unlikely to prevent a single abortion.

      It is already preventing abortions.

      1. That article is all speculation. Not one single case of someone who wanted an abortion and didn’t get it because of the new Texas law.

        1. Well, no, they aren’t about to come out and say that now, are they?

          1. It seems like there is a powerful incentive to say “I wanted to get an abortion but this law made that impossible”. It doesn’t punish the person who gets an abortion.

            1. No, but it does make it pretty difficult to then find someone who will help you get an abortion.

              (And yes, it is pretty hypocritical that everyone gets in trouble except the person having the abortion.)

        2. Come on, Matthew. You really don’t think anyone isn’t getting an abortion right now because of the law?

          You know better. Try this. Lots of patients with Wednesday appointments being turned away.

          1. “You really don’t think anyone isn’t getting an abortion right now because of the law?”

            PP site “we can help you find out-of-state care and financial help.”

            So “right now” is doing a lot of work. I hope those women will not now get one but the ghouls at PP will try their best

            1. Heaven forbid those ghouls at Planned Parenthood might help a pregnant woman find financial help!

          2. What I think is irrelevant. What matters is what you have evidence for. Even that second link doesn’t mention anyone turned away after the law went into effect until the very last sentence.

            1. Does the last sentence not count for some reason?

              1. It’s a throwaway comment indicating four people turned away out of an un-known number of applicants. It is not solid evidence of a pervasive chilling effect.

            2. The Court is not a computer or an idiot. It is able to take judicial notice of things that are quite clearly true.

              That you’re taking refuge in such arguments says a lot about where you think you stand on correctness and popular support.

              1. No one on this thread is a judge taking judicial notice of anything.

                1. You seem to be confused as to what people are arguing about, then. As, it’s not what the outcome should be according to posters here…

        3. This is direct from the planned parenthood site.

          As of 9/1/21 TX law restricts our ability to provide abortion after about 6 weeks of pregnancy. We are here for you. If we can’t provide care, we can help you find out-of-state care and financial help.

        4. “That article is all speculation. Not one single case of someone who wanted an abortion and didn’t get it because of the new Texas law.”

          On the other hand, the night before the law went into effect, the clinics’ waiting rooms were full of people trying to beat the deadline.

        5. An average of about 150 abortions a day are performed in Texas. Unless there’s something very unusual about the last couple of days. Even if 99% of interested women are able to arrange alternatives (which doesn’t strike me as particularly likely), it’s virtually impossible to see how the law hasn’t prevented some.

          1. Oklahoma, New Mexico, Arkansas and Louisiana aren’t very long drives from Texas.

            1. That entirely depends on where in Texas you live. It’s a big state.

            2. Texas is freaking huge, don’t be daft.

              1. Frontier Airlines has $88 round trip tickets from Dallas to Los Angeles. Delta and American $96.

                Is Texas too huge to fly over?

                1. The best case will be when a boyfriend pays for that ticket, has an ugly breakup with the girl, and then she sues him for $10k.

            3. So it does mention it.

              And earlier it mentions that the clinic had 77 appointments scheduled fro Wednesday. What do you think that was about?

              Are you going to pretend that someone who had an appointment, and didn’t show up, didn’t want an abortion, and not that they were reacting to the law.

      2. This law, or even overturning Roe v. Wade, will not eliminate abortions in this country any more than Prohibition eliminated drinking. In states that outlaw abortion, women with the knowledge and means will still be able to obtain them by going out of state or procuring drugs that do the same thing. But it may deter to some extent the poor and less sophisticated. They will resort to obtaining illegal abortions from “practitioners” with sketchy credentials, or the coat hanger. Just the way things were before Roe.
        But abortion opponents will be able to claim a “victory” in the Culture Wars that so inflame our current politics.

        1. The law hasn’t fully eliminated slavery or honor killings, either.

          1. Your name should be Cal Cretin. Muting you.

            1. The law has not eliminated theft or arson either.

            2. Hasn’t fully eliminated rape, murder, assault, fraud.

              I’m kind of at a loss for any crime the law has fully eliminated.

              1. Unlicensed machine gun use seems all but gone from the American crime scene.

                1. It never existed in the numbers fictional television likes to claim.

                  Even in the years before the NFA, there were few uses – the FBI’s Crime Data Explorer returns 4 hits for 1934 – which includes the crimes and famous shootouts with both Bonnie & Clyde and John Dillinger (none of whom used an automatic weapon at their deaths).

                  The 3-4 uses in the past almost 90 years since the NFA was passed don’t exactly indicate a success of the law.

          2. IIRC (haven’t looked at the data in a while) the number of abortions per year didn’t change much pre-/post- Roe.

        2. “This law, or even overturning Roe v. Wade, will not eliminate abortions in this country any more than Prohibition eliminated drinking.”

          There have been laws about theft and murder for 10,000 years yet thefts and murders still occur.

          The lack of a legal abortion industry will deter some number of women from getting abortions. Not all but some. Every one is a victory.

          There are many, many more abortions now than pre-Roe.

          1. If you REALLY want to reduce the number of abortions, you support complete, full sex-education for people who need it. Nothing reduces abortions as effectively as reducing unintended pregnancy.

          2. “There are many, many more abortions now than pre-Roe.”

            This isn’t correct. In 1972 there were 587K legal abortions and many more illegal abortions–researchers estimated a total of about 800K total abortions per year in 1967. In 2018, there were 619K abortions. This despite a large increase in the population of child-bearing-aged women. So the total number of abortions is lower in absolute terms and MUCH lower when considered in relationship to the population.

            Turns out the best way to reduce the number of abortions is not to criminalize them but to reduce the number of unwanted pregnancies through sex education and access to birth control. See, e.g., Colorado’s program to improve access to birth control and the associated reduction in the number of abortions in the state: https://coloradosun.com/2019/10/21/colorado-abortion-rates-keep-declining-free-iuds-and-easier-access-to-the-pill-are-the-reason/

            1. Data from the pro-choice Guttmacher Institute. Abortion climbed dramatically in the 10 years after Roe v Wade, then began a gradual decline, which accelerated around the time fetal ultrasound became widely available.

              Turns out it’s hard to go get an abortion once you can see what you’re aborting, which is why the pro-choice movement is so opposed to fetal ultrasound requirements: They want that choice made in the dark if at all possible, because they actually want the woman to chose abortion.

              Or as Guttmacher puts it, “the requirements appear to be a veiled attempt to personify the fetus and dissuade an individual from obtaining an abortion.”

      3. “It is already preventing abortions.”

        Dreadful!

        1. “The law is already stopping a lot of people from buying guns.”

          1. Moral equivalence?

            1. Legal equivalence.

              1. You’re relying on the Abortion Clause of the Constitution?

      4. It is already preventing abortions.

        It’s stirring up a hysterical reaction from PP, but nothing in that article says anything at all about any actual abortion being prevented.

        Here’s a quote:

        Planned Parenthood will try to keep clinics open, staff attorney Julie Murray said. But there is a chance that some abortion clinics will begin closing,

        Let us know when a PP clinic actually closes, eh?

        1. Let us know when a PP clinic actually closes, eh?

          Don’t be a moron.

          PP is complying with the law and has stopped performing abortions after the six week limit.

          Honestly, the stupidity of the arguments defending this business is stunning.

  5. The claim the Supreme Court lacks the power is nonsense as a descriptive matter. If the 4-Justice minority had gotten one more vote for doing so, they certainly would have, and nobody would have stopped them. Saying they don’t have the power is like saying the military lacks the power to nuke a city or the police lack the power to shoot an unarmed suspect. Of course they have the power.

    Saying you don’t think they should, based on norms as you perceive them, is completely different from saying they lack the power as a descriptive matter.

    And because they in fact have the power, and everybody knows it, I don’t see why Biden wasn’t within his rights to say they should use it.

    What’s happened here is a sea change in abortion law. Up until now, the Supreme Court routinely bent procedural and standing rules to enable it to take and decide abortion cases. This began with Roe, which the Court decided wasn’t moot. Every time a procedural obstacle was raised, the Supreme Court simply went right around it.

    This case totally changed that, by saying standard standing and procedural rules would be followed even if it means courts don’t end uo hearing these cases.

    Of course that’s a shock to anybody used to abortion jurisprudence of the last half century. This is a huge change in the law of how abortion cases are handled procedurally. It would be like suddenly applying traditional standing rules to First Amendment cases (which abortion jurisprudence has resembled in this regard), completely dropping the history of special “chilling effect” standing exceptions, and pretending nothing had happened.

    I’ve often said that major changes in the law should be based on full briefing and argument, and not come out of the shadow docket, even when I might support the change. And if there’s one thing I can’t stand, it’s people who try to pretend that a major change in the law – and this certainly is one – isn’t actually a change. We ought to be honest with each other about what we’re doing.

    1. “I’ve often said that major changes in the law should be based on full briefing and argument, and not come out of the shadow docket, even when I might support the change. And if there’s one thing I can’t stand, it’s people who try to pretend that a major change in the law – and this certainly is one – isn’t actually a change. We ought to be honest with each other about what we’re doing.”

      How does one return to standard procedural rules without following standard procedural rules?

      1. When the Supreme Court has consistently said abortion is special and the standard procedural rules that apply to everything else don’t apply, suddenly making abortion not special is a change in the procedural rules. And a big one.

        The problem here isn’t deciding that abortion is no longer special. It’s deciding that abortion is no longer special on the shadow docket, without briefing and oral argument.

        It’s also addressing Professor Blackman’s post. professor Blackman is arguing the Supreme Court doesn’t have the power to make abortion special. But they’ve been elmakijg abortion special for nearly 50 years, so it’s a little disingenuous to suddenly argue they can’t do it.

        Again, the court could decide a case after full briefing and argument where it says that for the last 50 years, we’ve been exceeding our proper powers and we’re now going to go back to doing things the way they should be, and issue an opinion with a detailed explanation. But that’s the sort of thing that needs to be decided on the regular docket, not the shadow docket.

        1. “But that’s the sort of thing that needs to be decided on the regular docket, not the shadow docket.”

          You’re suggesting that they issue a stay they don’t agree with, and then hold a hearing to say they don’t think they should be issuing stays?

    2. I think ReaderY is exactly right.

      At a bare minimum, SCOTUS could have issued an injunction against the private individual defendant, along with a strong implication that every individual in Texas would meet the same fate.

      I think that sort of implied auto-injunction against a hypothetical class would fairly be read as “blocking” the law, including lifting the chilling effect that’s presently (and unconstitutionally, for those of you who, unlike Josh, care about the Constitution) banning most abortions in Texas.

    3. completely dropping the history of special “chilling effect” standing exceptions

      None of the dissents mentioned “chilling” either.

      1. Gosh durn golly jee willikers! Not one of them mentioned the First Amendment! Caught me there!

        Man, gotta hand it to you. You sure proved I didn’t know what I was talking about when I said abortion standing rules have been handled “like” First Amendment standing rules. Totally defeats my claim!

        1. Gosh durn golly jee willikers!

          If you could suspend the high dudgeon just briefly, do you have a comment as to why the dissent did not mention this approach?

  6. Good grief, if the law is so obviously unconstitutional, then a doctor shouldn’t be afraid to be sued. It should be ridiculously easy to get the issue before a judge. There’s no rule that says only people who approve of the law can bring an action, so get some friendly ACLU person to sue a doctor, alleging he intends to perform an abortion, have the doctor admit that that is true and raise the statute’s unconstitutionality as a defense, and voila! Lawsuit dismissed under Roe/Casey. Have the plaintiff appeal up to the Texas Supreme Court to establish binding precedent. Shoot, you could probably remove the case to federal court under diversity jurisdiction — there seems to be no requirement that the plaintiff or defendant reside in Texas, and the plaintiff can allege that the amount in controversy (which includes attorneys fees and costs) exceeds $75,000.

      1. Not at all — where’s the misrepresentation?

        1. That there is a genuine dispute. What you’re proposing involves the plaintiff misrepresenting their true views and/or intentions.

          1. So find someone who does want to sue? Ok.

    1. >so get some friendly ACLU person to sue a doctor,

      “Sue and Settle” is a well-established tool in the Swamp’s toolbox, so you’re undoubtedly right about that being the better legal strategy here #BadLawyering

      That said, friendly litigants should itself raise procedural questions under “case or controversy” requirement.

      1. The law allows “any person” to bring an action. It doesn’t require that the person be in favor of the statute or believe it to be constitutional. The case would be real. If the court thinks the plaintiff is not sufficiently defending the constitutionality of the law, it could allow intervention, particularly on appeal, where it happens all the time when, for example, a new administration doesn’t want to defend a law.

        1. It doesn’t require that the person be in favor of the statute or believe it to be constitutional.

          No, but the Federal case or controversy requirement and its (I assume) Texas equivalent does require that the plaintiff believes that they have an actual, lawful course of action.

          1. The plaintiff genuinely believes that they have a valid cause of action under the terms of the statute and genuinely will take the $10,000 check if the lawsuit fails. What’s the impediment to bringing the suit, exactly?

            1. That Larvell was suggesting a situation where the plaintiff in reality believes the law to be unconstitutional.

              1. So what?

                The statute says Person A has to give Person B $10,000 if a certain set of facts are true. Person A says (completely honestly) that they won’t give Person B the $10,000 unless a court orders them to. What is your authority that standing depends on whether Person B liked the statute or not?

                1. >So what?

                  Having judges act as neutral decision makers only works if you have someone actually representing both sides.

                  There is a certain irony in worrying about how this law will set a horrible precedent wrt judicial review, while also thinking that it’s perfectly OK to have non-adverse parties arguing lawfare cases. You’re advocating for show trials, not justice.

                  1. If your point is that having government officials enforce government regulations is a better policy than trusting random people off the street, I’m inclined to agree.

                    If your point is that a court can sua spontaneously dismiss a case for lack of standing if it suspect that plaintiff isn’t going to be sufficiently upset about losing, I’d like to see some citations.

                    1. LOL. Among many, many others: Lord v. Veazie, 49 U.S. (8 How.) 251 (1850); Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v. San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901); Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971).

                      The problem isn’t that the courts can’t dismiss a case if there aren’t adverse litigants with real interests. It’s that they seldom inquire into litigants’ motivations.

    2. Are you an attorney?

    3. Good grief, if the law is so obviously unconstitutional, then a doctor shouldn’t be afraid to be sued. It should be ridiculously easy to get the issue before a judge. There’s no rule that says only people who approve of the law can bring an action, so get some friendly ACLU person to sue a doctor, alleging he intends to perform an abortion…

      However, during the pendency of that action, and until a decision by the Court of Appeals, only those original parties are affected. Does the trial court enjoin all 30 million Texas citizens from bringing similar actions in different courts? What about people entering the state after that injunction is issued? Then perhaps only those within that appellate district are affected until the State Supreme Court has ruled. In the meantime it has been very expensive for the myriad of defendants who have been sued, and those contemplating abortions must consider whether “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” will apply to them and whether they will be on the hook for thousands of dollars in penalties and attorney fees.

  7. One of the bloggers on Balkinization had an excellent suggestion:

    Draft and enact a statute – maybe in CT but no, especially in DC — that prohibits the expression of anti-choice views and anti-choice advocacy and delegates enforcement of that law to “any person.” Statutory damages for violation of the statutory would be – let’s go big — $100,000. Anyone could then sue Americans United for Life and individuals (politicians) advocating for the overthrow of Roe.

    Or here’s another one. Prohibit entry to the bar to a group of people (you pick) and also prohibit anyone from aiding or abetting a member of that group who is trying to become a member of the Bar. (See, e.g., Law Schools, Professors, the LSAT people, me – I’m a clinical professor). The law could even be applied retrospectively to members of this group who are members of the Bar. Delegate enforcement of the law to another specific group of people). Statutory damages for violation of the law again 100,000. A form of reparations.

    Let’s see how quickly things would change. I suspect the Court would rush to prevent such laws from taking effect. It would decide we need to have a mechanism for enforcement of federal constitutional rights in federal court and states can’t void this mechanism by playing these sorts of games. Either our interpretation of the 11th amendment must change or the Ex Parte Young doctrine – already a ‘fiction’ after all – must be broadened. Would they limit these mechanisms to the fancy First Amendment, cuz it’s the most important – it was first, foundation of democracy, etc., etc. You be the Judge.

    https://balkin.blogspot.com/2021/09/private-enforcement-mechanisms-and-you.html

    1. They think it’s clever, but everybody on the pro-life side reasons that abortion is different because the ‘right’ to abortion is a fake constitutional right. And precedents you set fighting a fake right shouldn’t carry over to real rights that actually have words in the Constitution to support them.

      And it is a fake right, but that doesn’t mean the same judiciary that invented it would refrain from using the precedent against real rights they don’t like.

      The best case scenario is that the Texas law gets struck down in a way that prevents the precedent, but the Supreme court in the process overturns Roe. I’m not holding my breath, though.

      1. This is bullshit, Brett.

        That you think it’s a fake right doesn’t make it so. We do not follow the Bellmore Constitution.

        Besides, the way to challenge Roe is to pass an abortion statute and wait for the challenge, not to try this obnoxious trick.

        1. There is no right to an abortion.

          There is a right to privacy that is at tension with the right of the baby to live.

            1. Abortions to save the life of the mother were permitted pre-Roe.

              1. I’m sure that will be a lot of comfort to people who’d rather avoid emergency surgery.

            2. The Texas law allows abortions to save the mother.

              I think most self-defense statutes require an imminent threat prior to killing someone else. Not a 17/100,000 chance of death.

          1. There is a right to privacy that is at tension with the right of the baby to live.

            There is more to it than that. There is a right to privacy that exists only in the case of abortion. That right conveniently vanishes when in conflict with any other progressive goal. If you wish to ensconce a real right to privacy in the constitution by all means do so, but a real right to privacy would do a lot more than disallow regulation of abortion.

            1. “There is more to it than that. There is a right to privacy that exists only in the case of abortion.”

              Why does your copy of the Constitution jump from the third Amendment to the Fifth?

              1. Get back to me when a court order is required for the government to access my banking records, inquire about my race when handing out goodies or examine my property for something one of the agencies wants to regulate.

                You have to bend the 4th pretty far to get to Roe v Wade and strangely the same reasoning is never applied elsewhere.

                1. Are you somehow under the impression that people who are pro-choice typically oppose requiring a court order for the government to access your banking records, etc.?

                  1. It’s not a pro/anti abortion thing. It is a libertarian/progressive thing. A right to privacy and limits to what the state can know about you is fundamentally a libertarian concept. There are plenty of pro-abortion libertarians who would logically and consistently embrace a real right to privacy. The right of privacy is not so much a pro-choice position as a pro-liberty position.

                    The problem arises if your embrace of the right to privacy is simply post-hoc rationalization. A real right to privacy would absolutely crush the progressive state. How is taxation going to work if the government has no access to my financial records ? How are you going to hand out welfare if you have no means of determining need ? How are you going to regulate my grain production if you need a court order to actually check it ?

                    Do you really believe any progressive would be fine with those things ? Their embrace of privacy is simply post hoc rationalization and nothing more.

                    1. A right to privacy and limits to what the state can know about you is fundamentally a libertarian concept.

                      That will become true on the unlikely day when libertarians embrace some notion of a power greater than government’s, to hold government in check, and vindicate private rights.

        2. We do not follow the Bellmore Constitution.

          We instead follow the infinitely superior and exquisitely principled Douglas/Blackmun (“you put your emanation in my penumbra!”) constitution.

          1. Yeah, institutions matter. We have an institution that we have charged with Constitutional interpretation.

            I’m pretty ticked off at them right now, but I’m not declaring my take as the One True Take and the Supreme Court as unable to stand before me like a lot of you chuckleheads are.

            1. I’m quite confident that the Supreme court can stand before me, and don’t think they’ll raise a sweat doing so. Doesn’t stop me from thinking I’m right about the things I believe; Do you typically believe you’re wrong about the things you believe?

              1. It’s perfectly fine for you to think you’re right. But that’s not what you are doing here.

                You are more or less proclaiming that arguing about Constitutional issues here is irrelevant, because the whole notion that abortion is a right is big mistake. That’s a different argument.

                1. It’s perfectly fine for you to think you’re right. But that’s not what you are doing here.

                  You are more or less proclaiming that . . . the whole notion that abortion is a right is big mistake. That’s a different argument.

                  Huh. Here I would have thought “the whole notion that abortion is a right is a big mistake” would have been something one could reasonably think oneself to be right about. Is there an approved list of topics somewhere that we could consult to sort this out?

      2. “They think it’s clever, but everybody on the pro-life side reasons that abortion is different because the ‘right’ to abortion is a fake constitutional right. And precedents you set fighting a fake right shouldn’t carry over to real rights that actually have words in the Constitution to support them.”

        The rights to life, liberty, and pursuit of happiness are listed in the Declaration of Independence, not the Bill of Rights.

    2. “that prohibits the expression of anti-choice views and anti-choice advocacy..” – both of those have a constitutional remedy. “Prohibit entry to the bar to a group of people (you pick)” – like the previous or maybe they’d inadvertently target a protected group. Neither of those are likely to get past any State’s legislature.

      1. “that prohibits the expression of anti-choice views and anti-choice advocacy..” – both of those have a constitutional remedy.

        Yes, that’s the odd thing. The US already has horizontal effect of constitutional rights, but somehow only the free speech clause.

        (As Mark Tushnet explains here for a European audience.)

        1. The speech clause of the 1st amendment is basically the only constitutional right to get genuine strict scrutiny. That’s why people are always trying to rationalize that whatever they’re asserting a right to do is really speech.

    3. One of the biggest problems the political left has these days is the rationalization of “well they did it first”.

      We should not be ruled by “do unto others as they have done unto you”.

      1. Wait, what? Who do you think is saying that? Is this your first time in the VC comments section???

      2. You seem to be confusing right and left. Hold your hands up in front of you, thumbs extended straight out. The one that makes an L shape is the left one.

    4. “prohibits the expression of anti-choice views and anti-choice advocacy”

      Anti-choice?

      You mean progressives would go to prison for opposing the right of small business to *choose* which ceremonies they assist in?

      1. “You mean progressives would go to prison for opposing the right of small business to *choose* which ceremonies they assist in?”

        WTF are you babbling about?

        1. You’re right, choice only means the choice to commit an abortion, it doesn’t mean the choice to run your business in a particular way. I don’t know how I could have made such an error.

          1. You seem to have a babbling problem. Have you been evaluated for stroke?

            1. You’re just an insult-spewing algorithm, aren’t you?

              That might explain the lack of creativity in your insults.

              1. I blocked Pollock long ago, together with the Rev and the queen. The conversation got a lot less stupid and contentious by blocking them.

  8. Law is a form of software. Software has bugs. Sometimes bugs are profound and fundamental.

    In this case, the bug seems to be in the concepts of standing and Article III controversies.

    What are we willing to do to fix this bug? Would we be willing to amend The Constitution to rewrite Article III? I’m not willing.

    IMO, we have come too far in leaning on the judicial branch to defend what we hold dear, and we fail to hold Congress accountable for passing better laws. The controversy over abortion should have never been solved judicially, it should have been settled politically.

    1. Alternatively, the bug is the idea of sovereign immunity, which has no basis in the text of the Constitution. It’s one of those fake rights that Brett Bellmore hates so much.

      1. See Eleventh Amendment, plus the Federalist Papers within which the States were expressly told that Article III did not abolish each State’s sovereign immunity.

        1. The Eleventh Amendment says nowhere that the states can’t be sued, it only says that they can’t be sued in Federal Court by someone who’s not a citizen of that state. It says nothing about suing the state somewhere else.

          As for the Federalist Papers, last I checked they aren’t part of the Constitution.

          1. The Federalist Papers are routinely cited as authoritative regarding the meaning of the Constitution as originally adopted, and not just by federal courts. In late 2016 and early 2017, Federalist 68 was repeatedly cited the news media, Clinton supporters, and Trump supporters regarding the purpose of the Electoral College.

            1. “The Federalist Papers are routinely cited as authoritative regarding the meaning of the Constitution as originally adopted”

              Not where the Constitutional text is unambiguous.

              1. Not where it is ambiguous, either.

    2. Standing isn’t an article III issue. It’s court created.

      1. That’s true for some types of standing. But Article III standing is an Article III issue.

    3. Article III standing requirements don’t apply in state courts, though.

  9. The money quote on this decision was by Adam Serwer in The Atlantic:

    “…the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.”

    It’s this kind of disingenuous behavior that gives lawyers a bad name.

    1. Adam Serwer is a journalist, not a lawyer.

      1. And most of the commentators here aren’t attorneys. Blackman isn’t a litigator, he’s a professor. Is he even a barred attorney?

    2. The most egregious hypocrisy is indeed the completely hypothetical kind.

  10. “The Supreme Court Could Not ‘Block’ Texas’s Fetal Heartbeat Law”

    Well, they did block it back in 1973, but the Texas State government doesn’t care.

    This is a lesson on the nature of despotic power. What keeps the government from engaging in tyranny isn’t the Constitution. It’s the reluctance of the people who have power from using it tyrannically. Elect people into powerful positions who don’t care what the limits of their power are supposed to be, and you get what you get.

    1. They blocked the law in 1973 because they could tell government to stop enforcing it.

      Did Texas ever repeal their law? Otherwise it’s still on the books.

      1. They blocked the law by saying “The Constitution doesn’t allow you to make laws like this.” Which means that any attempt to do so is void.

    2. This is a lesson on the nature of despotic power. What keeps the government from engaging in tyranny isn’t the Constitution. It’s the reluctance of the people who have power from using it tyrannically. Elect people into powerful positions who don’t care what the limits of their power are supposed to be, and you get what you get.

      Um, that lesson has repeatedly been front and center before us and many other countries for the past year and a half now. But I’m glad to hear it’s finally come close enough to your doorstep to get your attention.

  11. Well let’s see. On one side you have Prof. Blackman’s opinion, and while he is obviously very intelligent, very learned and writes very well, let’s remember he is a law professor at an unknown law school.

    On the other hand we have the Chief Justice of the United States, a conservative, an opponent of abortion rigths, an individual who believes Roe was incorrectly decided.

    No offense to Prof. Blackman, whom I respect for having the courage to place his views into the public arena, but I think as far as the legal position is concerned we should go with the Chief Justice and not with the five hacks who were appointed in spite of their lack of legal credentials (yes I am talking about you Clarence) and who vote their personal beliefs and not the law.

    1. The law school is literally identified in his bio here, it’s not unknown.

      1. It is an unknown lawschool. That doesn’t change just because you identified it.

        1. I literally know which school it is. That by definition precludes it being unknown. Perhaps you meant “of limited repute”?

          1. You know the name, but what of it do you know? What of it does anyone know? Do students even go to that school? The school is *generally* unknown.

            1. Ah, so you do mean, “of limited repute”. Should have said that, then.

    2. “yes I am talking about you Clarence”

      The only Justice you single out by name in unqualified is a black man.

    3. “Well let’s see. On one side you have Prof. Blackman’s opinion, and while he is obviously very intelligent, very learned and writes very well, let’s remember he is a law professor at an unknown law school.”

      That’s incredibly generous.

    4. “five hacks who were appointed in spite of their lack of legal credentials”

      All have similar credentials to Roberts.

      Justice Thomas has a law degree from Yale, Roberts from Harvard. Both were judges of the DC circuit.

      1. I think he means they’re people who are not like him so they’re fair game for bigoted put-downs. That is a common meaning for that sort of comment.

  12. I’m forced to wonder if Prof. Blackman would be as confident in the impossibility of blocking the law if the target of the law was gun owners or conservative constitutional law professors.

    The whole idea of a Supreme Court is that when someone comes up with a clever loophole to circumvent the constitution they’re the one entity that has both the power and duty to do something about it.

    1. I think they would be equally unable. They should have the duty but they really don’t have the power and that scares the hell out of me.

  13. Man, what’s going to happen when Blackman reads Shelley v. Kraemer? I think his head might explode.

    1. That’s a good point. It seems the procedural issues here are similar. And we haven’t had a problem with people trying to sue to enforce racist restrictive covenants.

      1. Well, not for some time anyway. (It did take a good couple of decades after Shelley v. Kraemer before racist restrictive covenants were no longer an issue.)

    2. I’m not following. The cases in Shelly v. Kramer were suits brought by property owners to try to enforce the racist covenants: the black purchaser defendants raised the constitutional issue, just as abortion providers defendants will be able to if someone files a suit. The analogous case would be if black prospective purchasers had tried to invalidate the restrictive covenants by preemptively suing state officials, which to my knowledge was never undertaken (much less successfully).

    3. Jaypd

      The district court adopted Shelley v. Kraemer in this case. And it seems spot on. None of the Supremes mentioned it. It should have ruled the day.

  14. It seems the abortion-fanciers are suddenly “discovering,” to their horror, that the process can be the punishment. The stress and fees you undergo when wrongfully accused can be very high.

    This of course applies to anyone falsely accused of abortion (though the current litigation is conducted by organizations who admit they’re guilty).

    And it applies to the numerous Americans who are subject to wrongful prosecutions – as long as perjured witnesses are willing to accuse you of violating a constitutionally-valid law, you have to endure a trial and can’t stop the trial with an injunction from the lower federal courts.

    It applies likewise to people who are wrongfully sued – again, so long as the underlying law is constitutional, if false facts are alleged against you you have to go into court and defend yourself.

    With the benefit of their new insight, perhaps the “choice” advocates could help support a system of loser-pays, not only for civil cases but for criminal cases as well.

    1. “It seems the abortion-fanciers are suddenly “discovering,” to their horror, that the process can be the punishment. The stress and fees you undergo when wrongfully accused can be very high.”

      They’re “discovering” that they’re on an unfair playing field. If plaintiff wins, they get $10K + fees. When defendant wins, they get $0K.

      1. That’s funny, I thought I was *supporting* loser pays for all, including those falsely accused of abortion.

        So far this hasn’t mattered because the organizations going into court to date are in fact guilty.

        But I hope the “choice” faction will also be sympathetic to, for instance, someone who gets sued for a traffic accident which wasn’t his fault. How much does he get if he’s exonerated?

        Do the prosecutors pay the attorney’s fees of an innocent person they put on trial?

        If the dispute is “merely” over facts (which in these hypotheses means the plaintiff/prosecutor making stuff up) then there’s almost never any preliminary recourse to the local federal court or federal circuit court (notice that I’m stipulating someone who ends up exonerated).

        The traffic-accident defendant, or the wrongly-accused criminal defendant, has to face his trial. What compensation will he get?

        1. Do the prosecutors pay the attorney’s fees of an innocent person they put on trial?

          I mean, the government does end up paying the legal costs for the vast majority of guilty people they put on trial, to say nothing of he innocent ones.

          1. I suppose I was thinking of someone in the middle class who isn’t rich enough to throw around legal fees like confetti, but not poor enough to get free legal aid.

          2. “Do the prosecutors pay the attorney’s fees of an innocent person they put on trial?”

            If you cannot afford an attorney, one will be appointed for you. Of course, they’ll try to get you to take a plea bargain, because they have 70 other cases to work at the same time as yours.

            1. If I’m not mistaken the majority of states actually send you a bill for that attorney they appointed for you because you couldn’t afford to pay for your own. After all, you wouldn’t want ex-convicts and other poors to actually have a path towards not being poor…

              1. I’m open to being corrected if you have counter-examples, but to my knowledge the contribution provisions are: 1. Significantly under-enforced; 2. Never close to the actual cost of the legal services provided; 3. Constitutionally required to be reduced or waived if the defendant lacks the ability to pay; and 4. Not available unless there is a conviction.

        2. “That’s funny, I thought I was *supporting* loser pays for all, including those falsely accused of abortion.”

          That’s not the way the law at issue was written.

          1. Yes, the law was written in accordance with the American Way, remember?

      2. I wonder if you keep track of what you say from one post to the next.

        In one post you say:

        “They’re “discovering” that they’re on an unfair playing field. If plaintiff wins, they get $10K + fees. When defendant wins, they get $0K.”

        Then in a post soon after that you defend what you just denounced:

        ““loser pays” is the English rule, and we have the American Rule instead. You know we WON he Revolution, right?”

        Have you finally solved the philosophical problem of disproving the law of noncontradiction?

    2. “With the benefit of their new insight, perhaps the “choice” advocates could help support a system of loser-pays, not only for civil cases but for criminal cases as well.”

      “loser pays” is the English rule, and we have the American Rule instead. You know we WON he Revolution, right?

      As for you complaint that a perjured witness can drive a costly legal case, perhaps perjury should be be somehow punishable…

      1. ‘“loser pays” is the English rule, and we have the American Rule instead. You know we WON he Revolution, right?’

        Brainless flag-waving worthy of the worse stereotype of a tobacco-spitting good old boy. But, come to think of it, a tobacco-spitting good old boy would see through this maudlin appeal, and realize that the “embattled farmers” of the Battle of Concord weren’t supporting the right to be denied compensation for false charges.

        1. “Brainless flag-waving worthy of the worse stereotype of a tobacco-spitting good old boy.”

          So it got through to you, then?

          1. You’re just an insult-spewing algorithm, aren’t you?

            That might explain the lack of creativity in your insults.

      2. To paraphrase one commenter above, making perjury criminal won’t eliminate perjury.

        To paraphrase another commenter, if you *really* wanted to stop perjured testimony, you’d teach witnesses not to perjure themselves.

      3. To paraphrase one commenter above, making perjury criminal won’t eliminate perjury.

        To paraphrase another commenter, if you *really* wanted to stop perjured testimony, you’d teach witnesses not to perjure themselves.

        1. To paraphrase you, duh huhwhat?

          1. You’re just an insult-spewing algorithm, aren’t you?

            That might explain the lack of creativity in your insults.

    3. the abortion-fanciers are suddenly “discovering,” to their horror, that the process can be the punishment. The stress and fees you undergo when wrongfully accused can be very high.

      This is ridiculous.

      1. OK, the stress and fees you undergo *arent’t* very high. Better?

    4. You don’t imagine they actually care about people do you?

      Power and money are at stake. Pretending to care about the people involved is just a cynical sales pitch, as always.

  15. I predict that Congress will resolve these court battles on abortion by enacting a federal statute to legalize abortions within the first 18-22 weeks of pregnancy, with exemptions for cases of rape, incest and the mother’s health.

    Pelosi announced she will be introducing and running a bill that makes Roe v Wade the law of the land. To get the 60 necessary Senate votes, the gestation age will likely be reduced from 24 weeks to several fewer.

    1. I suppose such a bill would be based on interstate commerce?

      1. If you accept that abortion is protected under the fourteenth amendment (which I think is the conceit of Roe), then such a law seems like a fairly straightforward exercise of section 5 power.

        1. If abortion is protected under Roe, Congress wouldn’t need to pass a law to protect it.

          If Roe were overruled, Congress would have to find a new rationale.

          1. Bingo. And under City of Boerne v. Flores, it’s likely Section 5 of the Fourteenth Amendment would not work. But, like the ban on partial-birth abortions, the National Choice law would be textually limited to abortions that affect interstate commerce.

    2. “get the 60 necessary Senate votes”

      Manchin says he is pro-life so that is 49 Dems, add Collins and maybe Murkowski, that’s 51 votes.

      No other GOP will vote yes. Zero.

      1. You’re bad at counting. There are only 49 Democrats in the Senate to begin with.

        1. “There are only 49 Democrats in the Senate to begin with.”

          I am not the one bad at counting. If there are only 49 Democrats in the Senate, than Mitch would be majority leader.

          1. I believe it’s actually 48. Angus King and Bernie Sanders are Independents, but caucus with the Dems, giving them 50 on “their side”.

            1. “Angus King and Bernie Sanders are Independents,”

              Form over substance but the best kind of correct.

              1. LOL! Fair point. I speak fluent Pedantic, occasionally with a slight Sarcastic accent.

  16. God aborts more babies (by a considerable margin) than any doctor or group of doctors. All of His property interests seem to be owned by churches. Will suing them in Texas for aiding abortions produce any 1A issues?

    1. To date, God has a record of “killing” every human being.

      We may as well legalize murder, since God will bump them off eventually in any case.

  17. Let’s apply this logic elsewhere: Obamacare is clearly unconstitutional (a tax with zero actually taxed is very very clearly a penalty) and the court has already said a penalty would be unconstitutional.

    However, because no one is actually harmed by that portion of the law, no standing!

    But surely there must be a way to overrule unconstitutional laws, so regardless the law falls. Right guys? Right?

    I love how everyone, including Prof. Blackman, just flipped on this issue. Its fun! (Prof. Alder has been consistent which is why I appreciate his commentary here a lot more than others, even if I disagree sometimes)

    1. I’m not sure how a tax of zero value is clearly a penalty, it seems to me a penalty should involve some sort of harm, otherwise it’s not really penalizing.

      But a law that is clearly unconstitutional (contradicts Roe v. Wade) and has a clear harm (abortion clinics have already changed policy) should most certainly be blockable before that harm actually comes into being.

      1. It’s simple enough: Anything times zero is zero, ergo no mathematically possible tax rate on zero value could produce a finite sum. The ACA penalty isn’t a tax.

        Mind, not all taxes are proportional to anything, so the reasoning fails, but that would be the reasoning.

        The actual reason it was a penalty is that the law actually SAID it was a penalty.

  18. This is my first post and I am not a lawyer, so please be gentle.

    I worry about deputizing anyone, anywhere, for any reason, with no requirement for standing, as a plaintiff. No only does it seem like it will inevitably raise the number of frivolous lawsuits, it doesn’t seem to have any protections against abuse.

    Maybe I’m too cynical, but I’m sure people will use it to harass people they dislike regardless of whether it’s true or not.

    Even more concerning to me is that this “release the mob” idea will be taken up by every other fringe group that wants to dictate behavior and restrict individual liberty. Racial and religious extremists could get a law passed that allows people to sue for using racial slurs or infringing in the slightest way on religious expression.

    As an example, I’ll use white supremacists because almost no one thinks they are good people, but they deserve free speech rights. Pass a law that allows any citizen to sue anyone who uses “hate speech”. Anyone who uses the n-word, anyone who enables that person (for example, if an employer doesn’t immediately fire the offender”), anyone who defends the person, etc. could be sued, in this parallel. Racists are awful, so it’s no-brainer legislation. But it is ripe for abuse.

    Maybe I’m being too fearful, but that’s the part of this law that scares me the most. Am I wrong to fear a law that legitimizes society’s id as a basis for lawsuits?

    1. Said another way, is this “deputize the mob” approach new? Has it ever been legislated (or challenged) before? If so, what was the outcome?

      1. Never mind. Professor Volokh’s new post helped a lot. Thank you for that, Professor Volokh.

  19. I always appreciate Feldman’s candor. He says aloud what others are thinking. Unfortunately, telling courts to be “creative” is to tell courts to–pardon my French–”make shit up.”

    Why should they stop now?

    One of my favorite examples of making shit up was Justice Black’s decision in Oregon v. Mitchell, which held that the constitution’s provision giving Congress the power to make or alter regulations regarding the the times, manner, and places for electing representatives, and the times and manner of electing senators, meant that Congress could by statute set qualifications for voters for those offices (in the case at hand, lowering the voting age to 18), and that the similar provision for election of presidential electors–well, there was no similar provision, but that didn’t slow Justice Black down. Black just held that it would be absurd to let Congress set qualifications for voters for some but not all federal elections, and so it could just be assumed that Congress had the power to lower the voting age for presidential electors as well. And his reading–shared by none of his colleagues–became the law of the land.

  20. “Not all constitutional wrongs can be righted by the judiciary.”

    So, those wrongs must remain? Nothing else can be done?

    1. It’s more like not all alleged wrongs can be righted by the federal courts through pre-action injunctive relief. In fact, with respect to this discussed abortion case, this is made plainly clear in the majority opinion.

  21. Once there is an actual case or controversy it would seem that Shelley v. Kraemer would be applicable, where the only government action was the state court enforcing a private agreement restricting sale of property based on race. This was called an equal protection violation. I guess in the case of abortion it could be called a deprivation of “liberty” without due process of law. Josh Blackman said:

    But a remedy to preserve the status quo ante would be impossible in this case, which only concerned Judge Jackson.

    But I don’t see why a remedy against Judge Jackson based on the unconstitutionality of judicial enforcement of such a law would not establish that same unconstitutionality against every other judge. This whole thing seems to be overblown. Why don’t the plaintiffs just get a willing doctor and patient, perform the abortion, then have a willing citizen of Texas sue the doctor under the statute? Instant jurisdiction, no? What’s the downside? If it came right down to it the willing citizen could refrain from forcing the doctor to actually pay anything.

    1. But I don’t see why a remedy against Judge Jackson based on the unconstitutionality of judicial enforcement of such a law would not establish that same unconstitutionality against every other judge.

      On the other hand, if the issue is the existence of a state-wide injunction until the trial is over, in the usual case the state is the one enjoined since it brought the first proceeding but how does the court enjoin millions of citizens who are not a party to this proceeding?

      1. It wouldn’t and he didn’t claim it would. He suggested it would have the effect of signaling such an outcome to anyone else suing under the law and to any judge enforcing the law.

  22. “I have yet to see anyone explain how a case that involves a single named judge could be used to block the enforcement of a law by hundreds of judges statewide, who have no role in enforcing the law.”

    Because you want to do the same thing as the majority. Faced with a deliberate attempt to evade review with a highly unusual structure, and an ample showing of harm, to sanction the idea that no extraordinary remedy be applied. As you’ve said, the dissent called for an extraordinary remedy to an extraordinary situation. No doubt there’s a long list of things they “can’t” do that really, they could have done. Roberts saved the ACA with an argument not raised, for example. The court “couldn’t” consider an argument not raised, until they did. They could certify the class themselves then and there. Get a list of judges and enjoin them. Or go ahead and announce that when no less extreme remedy exists in the face of a clearly unconstitutional law with imminent widespread harm, they do have the power to enjoin a law itself, or the power to skip the normal certification process for classes and enter a provisional certification, for a less controversial claim.

    I mean honestly, you act like the entire history of jurisprudence isn’t making up new standards when confronted with new facts and extraordinary situations. This is like arguing why the Marshall court lacked the power to institute judicial review in the first place. Yes, the Court didn’t technically have that power, until they decided the constitution was pretty meaningless unless they did, because the executive would then be free to determine which rights people actually have on their own. Sounds familiar.

  23. Yes, the Left wants the Supreme Court to make up laws so that the Court can control everything.
    The Court created rules that limit its own power probably because justices realized that if they go too far, they will destroy the Court’s credibility.

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