The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Equity in United States v. Texas, Part 1


Yesterday the United States filed an application in the Supreme Court asking it to intervene in the litigation about the Texas abortion statute, S.B.8. What the Solicitor General's office requested was for the Court to vacate the the Fifth Circuit's stay of the district court's preliminary injunction, and there was a suggestion the Court could go ahead and grant cert in the case.

There are many procedural complexities here. I want to explore the question of whether the United States has a "cause of action" in equity.

The position of Texas is that there needs to be a cause of action in equity but there is none. The position of the United States is that there is a cause of action—though it's rather cagey about saying what exactly that cause of action is, and it's more comfortable talking about federal interests.

If you want part of the bottom line it's that Texas is wrong to say that the United States needs to have a "cause of action" in equity—equity didn't, and doesn't, work that way. It didn't, and doesn't, have causes of action in the sense that law did. (This is the subject of a draft paper that my colleague Paul Miller and I are writing for the Notre Dame Law Review's federal courts symposium early next year, called Getting into Equity.)

But the United States is not on better ground. It misreads Grupo Mexicano and offers no limiting principles (which is a major concern in Grupo). These limiting principles are as important in equity as its powers. As Christopher Langdell said in 1883, "[A]ny one who wishes to understand the English system of equity as it is, and as it has been from the beginning, must study its weakness as well as its strength."

Does the United States have grounds to sue in equity? The question is complex, and it may all come down to Debs, which is why that will be the main focus of this series of blog posts. But before we get to Debs, my next several posts will be about Grupo Mexicano.