Can Cooper v. Aaron Save Roe v. Wade?

Abortion advocates appeal to one exercise of raw judicial power to save another exercise of raw judicial power.


On Thursday, Texas abortion groups filed a petition for certiorari before judgment in Whole Woman's Health v. Jackson. The groups argue that the Fifth Circuit has already signaled how it will rule, and arguments will not be held under December. Thus, there is no need to wait further.

I think this Hail Mary is unlikely to succeed. First, the posture of the case here is very similar to the posture of the case the Court ruled on earlier this month. WWH's cert petition faces the same jurisdictional hurdles that the emergency application faced. It would only take four votes to grant cert here, but it will take five votes to expedite consideration. I can't count to five. The same five Justices who denied the stay would likely deny expedition. Second, the timing works against WWH. I can't imagine the Justices are eager to take this case up at the same time as Dobbs–especially before the Fifth Circuit had a chance to rule. Third, the Justices are far more likely to take up the DOJ petition, which eliminates some (but not all) of the jurisdictional hurdles.

Still, this Hail Mary pass was probably a prudent move for WWH. Worst case scenario, the Court leaves the petition pending. And if the Court grants DOJ's petition, then the Court can also grant Whole Woman Health's pending petition. That case would present every viable path for relief.

Here, I will focus on one important argument presented by the petitioners.

It is a foundational principle of our federal constitutional system that "the federal judiciary is supreme in the exposition of the law of the Constitution," and States may not nullify federal rights through "evasive schemes" designed to foreclose federal judicial review. Cooper v. Aaron, 358 U.S. 1, 17–18 (1958). Had a State after Brown v. Board of Education, 349 U.S. 294 (1955), enacted a similar law authorizing private citizens to sue anyone integrating a school, there can be little question that this Court would have immediately stopped that act of lawlessness. That S.B. 8 seeks to frustrate the right to abortion rather than the right to equal protection cannot justify different treatment.

The citation to Cooper is appropriate given the relief WWH seeks. At present, there is only one judge who is part of the case. Still, the parties want the Court to "strike down" S.B. 8 and bind putative defendants who are not yet named parties. This exercise of judicial supremacy can only be supported by Cooper v. Aaron. Specifically, WWH invokes what I refer to as the principle of judicial universality: "the Supreme Court's constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases." True enough, Cooper asserted this power. But the Court has never since endorsed this proposition. With good reason. Such a sweeping assertion of judicial supremacy cannot be grounded in the Court's precedents–and don't even think of saying Marbury! Long before there was in irrepressible myth of Jacobson v. Massachusetts, there was an irrepressible myth of Cooper v. Aaron. One raw exercise of judicial power cannot save another exercise of raw judicial power.

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  1. But does the court really need to *bind* anyone? Isn’t it sufficient for the court to decide the issue and simply make it crystal clear to the lower courts that SB 8 is in fact unconstitutional thus rendering any suit brought under SB 8 a frivolous suit or something like that?

    Maybe I’m missing something since I’m not a lawyer but what is the practical difference between binding non-parties and simply directing the lower courts to always rule in a certain way in all future cases involving the same law?

    1. Is your argument that in order to effectively enforce the rights incorporated under the 14th amendment requires congressional action, e.g., congress would need to pass a law that somehow bars these suits from being brought? I mean surely the constitution can’t guarantee rights (and this would apply to any incorporated right) without any form of remedy.

      1. No, he’s certainly making no reference to Federal legislative action whatsoever.

        If the Federal kritarchy continues to imagine that a right to abort is “incorporated” under the 14A then it can presumably order Texas courts to not award the damages and costs provided by SB8. But I wouldn’t think those courts can be whom he is referring to as “putative defendants”. Those, I think, must be the class of potential future SB8 plaintiffs “bound” by imagined Federal court action from bringing such suits.

        What he imagines that Cooper allows that our kritarchy will refrain from doing I cannot imagine.

      2. > I mean surely the constitution can’t guarantee rights (and this would apply to any incorporated right) without any form of remedy.

        Like that 2nd amendment rights of those 18 to 20 years of age?

  2. I think the Supreme Court was perfectly aware of Cooper v. Aaron the first time around, so a second petition that cites it directly doesn’t strike me as changing anything.

    And the Court’s behavior the first time around means that it no longer regards abortion as a do-or-die proposition analogous to Brown, one that regards people on the opposite side as subverters of the constitution and enemies of justice, and justifies doing everything and anything to defeat them. The Court’s new majority simply doesn’t look at abortion that way.

    Even if it takes a long time for the new majority to make any substantive change in the underlying law of abortion, that fact alone signals a huge sea change has come here and now, to an environment where arguments like Whole Womens Health is now making will fall on dead ears.

    1. It that is true, I wish they would make it clear with a merits decision and quit mucking about with shadow docket actions.

  3. In general I agree with Chief Justice Roberts’ analtsis. Although SB8 uses a new tactic, the court in the past overcane lots of new atgunents, and there were lots of new tactics of a similar general sort used in the years after Brown.

    So the Court in effect signaled a sea change in its general posture in the initial SB8 ruling.

    And I agree this is not something it should do without full briefing and argument, and time to consider things and write a detailed and thougjt-out opinion explaining itself to the public before handing down a judgment, done in regular order.

    But having decided to make the sea change when it did, I agree with Professor Blackman that the new majority is very unlikely to go back now.

    1. On the contrary, I suspect that the “new majority” won’t come out at a much different pace than the old majority, though its eagerness to so so is somewhat subdued. Roberts will find a way to sustain Roe until he’s carted off the stage toes up.

  4. So, so eager to murder babies. Cannot wait even a week.

    1. A week is a long time, gestationally.

    2. So, so eager to for the government to have the power to force women to have babies against their will. At least anti-abortion women have some potential skin in the game. Men like you – just pathetic.

  5. I suppose if we had an Emperor or Empress, and you could get his/her attention, the Emperor or Empress could tell the Province of Texas to revoke SB8 on pain of beheading. But John Roberts (who I used to know and liked as a friend, so I do not mean this disrespectfully) is an unlikely candidate for Emperor. Why are abortion-fans unwilling to allow due process of law to operate? If the majority of the SCt remains of the view that the Constitution prohibits any significant limitation on the right of abortion, then when an SB8 case gets to the Court, it will be held to be unconstitutional. Or is the real fear that the Court’s mind may be open to re-thinking the proposition that abortion is engrained in our Constitution, although not mentioned?

    1. It might not be mentioned, but the constitution does mention that the rights specifically enshrined are not the only ones retained by the people. And if the court is indeed rethinking that proposition, then they should either clearly overrule Roe and Casey or abide by those decisions. Giving a sly wink to state transgressions through the shadow docket while not having the guts to clearly overrule Roe and Casey isn’t the optimal way to proceed.

  6. “It already has been decided that the defendants are doing a wrong to the complainants, and that they must stop it. They must find out a way at their peril. We have only to consider what is possible if the State of Illinois devotes all its powers to dealing with an exigency to the magnitude of which it seems not yet to have fully awaked. It can base no defences upon difficulties that it has itself created. If its Constitution stands in the way of prompt action, it must amend it or yield to an authority that is paramount to the state.”

    Wisconsin v. Illinois, 281 U.S. 179 (1930) (Holmes, J.)

    And yes, Ex Parte Virginia, the Supreme Court’s constitutional interpretations can create obligations for non-parties. (See, e.g.: Marbury and its progeny, US Reports, and Schoolhouse Rock.)

    Again, aligning the pro-life movement with Texas secessionists at the moment that the federal judiciary indicated a receptiveness to the former’s arguments indicates a wisdom far higher than I’m capable of perceiving.

    Mr. D.

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