The Volokh Conspiracy

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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.”


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!