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On Friday, the Fifth Circuit decided Whole Woman's Health v. Jackson. The panel ruled that suit was not proper against the state court judges, and the individual defendant. At this point, I think Whole Woman's Health is out of luck. There is no chance for en banc review of this interim ruling. And there are not five votes for shadow docket relief. The panel ordered oral argument at the next available panel. It is not clear which panel will hear that case. But given this interim decision, I think the law of the case would go against Whole Woman's Health. And certiorari from that decision will linger for some time.
Now, the only way to achieve some type broad relief will be DOJ's suit against Texas. Still, there are several elements of the panel's decision that cast doubt on DOJ's case.
First, the court states that "claims against a state judge and court clerk are specious." Much of the analysis focuses on why Ex Parte Young excludes judges from the scope of relief. This analysis would have no bearing on the DOJ's suit, because sovereign immunity is not at issue. But the court also explains that judges are not proper defendants because they are neutral arbiters:
Moreover, it is well established that judges acting in their adjudicatory capacity are not proper Section 1983 defendants in a challenge to the constitutionality of state law.
Second, the court explains that no controversy exists between the plaintiffs and the defendant-judges:
More broadly, the Declaratory Judgment Act requires an "actual controversy" between plaintiffs and defendants, 28 U.S.C. § 2201(a), but no such controversy exists. Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980). The Plaintiffs are not "adverse" to the state judges. See Bauer, 341 F.3d at 359. When acting in their adjudicatory capacity, judges are disinterested neutrals who lack a personal interest in the outcome of the controversy.
The panel added:
For instance, a significant issue is whether a federal court has subject matter jurisdiction to enjoin state officers acting in their adjudicatory capacity, an issue raised repeatedly in the district court by all parties.17 Indeed, the Supreme Court has already questioned, in this very case, the propriety of "issu[ing] an injunction against state judges asked to decide a lawsuit under Texas's law." Whole Woman's Health, 2021 WL 3910722, at *1 (citing Young, 209 U.S. at 163).
These statements are precisely the precedential buzzsaw I anticipated on Thursday. If there is no adversity between Whole Woman's Health and the state court judges, there would be no adversity between the United States and state court judges. Judges are neutral arbiters who don't have a stake in the outcome of the case. And judges cannot actually defend the constitutionality of S.B. 8. I do not think the suit against Texas, a whole, changes this analysis. Texas is not a unitary entity. It is made up of many individual officers. If the relevant officers in the state are not adverse to the United States, then the court would lack Article III jurisdiction to issue a judgment against those non-adverse state court judges.
Third, the panel explains that there is no right to pre-enforcement challenge.
It is absurd to contend, as Plaintiffs do, that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.13
FN13: In fact, several lawsuits challenging S.B. 8 are currently pending in state court.
Back in the day, the constitutionality of laws was assessed in defensive postures. Howard Wasserman and my colleague Rocky Rhodes explain this point well. And those defenses can be raised with S.B. 8 as well:
But we point out, as did the Supreme Court, that potential S.B. 8 defendants will be able to raise defenses before state courts that are bound to enforce theConstitution. See ibid. (noting the Court's "order . . . in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts").20
Footnote 20 references DOJ's suit:
We also note that United States recently challenged S.B. 8 by suing Texas in federal district court. See United States v. State of Texas, No. 1:21-cv-796 (W.D. Tex. Sept. 9, 2021).
Yet, I think this argument would counsel against entertaining jurisdiction in United States v. Texas pre-enforcement challenge.
Fourth, the court explains that Whole Woman Health's theory of jurisdiction conflicts with the principles of federalism:
Plaintiffs' position is antithetical to federalism, violates the Eleventh Amendment and Ex parte Young, and ignores state separation of powers.
These same concerns based on the separation of powers would affect DOJ's suit. Indeed, those concerns may be even more pronounced, as the federal government is hauling state governments into court.
Fifth, in a footnote, the panel strongly suggests that there are other jurisdictional hurdles:
We do not even take into account the many other justiciability defenses Defendants have raised beyond Young. Defendants have argued powerfully that, not only do they enjoy Eleventh Amendment immunity, but federal jurisdiction is also lacking under Article III. Related doctrines of standing, ripeness, and justiciability are also likely to prevail because these Plaintiffs have no present or imminent injury from the enactment of S.B. 8. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992).
The emphasized portion is the most important. If the actual abortion clinics do no have a "present or imminent injury," then the federal government–which does not actually perform abortions–cannot assert a "present or imminent injury." Kevin Walsh addressed "statistical likelihood" standing at Mirrors of Justice.
The panel favorably cites, of all cases, California v. Texas.
Nonetheless, for a federal court to proceed to the merits without certainty of jurisdiction "would threaten to grant unelected judges a general authority to conduct oversight of decisions of the elected branches of Government." California v. Texas, 141 S. Ct. 2104, 2116 (2021) (citation omitted).
Judge Engelhardt, who was on the panel, was also in the majority of the Fifth Circuit's ACA decision.
I agree with Howard Wasserman: the Fifth Circuit got the procedural analysis right with respect to the state court judges.
All of these points should now be circuit precedent. The district court can try to distinguish them, but that approach will probably lead to reversal.
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