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.

NEXT: Head of Berkeley Atmospheric Science Center Resigns Directorship to Protest Refusal to Invite Dorrian Abbot

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  1. Law: it’s important to have clear rules that everyone understands so they can act correctly and not be surprised.
    Equity: Yes, but sometimes the strict application of rules can lead to an injustice. We need some way to allow for flexibility in those instances.
    Law: That makes sense. Now we just need to carefully spell out the situations in which the rules are too strict, and have clear guidelines so we know when not to apply the regular rules, and instead apply the special equity rules.
    Equity : ¯\_(ツ)_/¯

  2. Basically the left doesn't want the rules to apply because they don't like the rules. That is their typical MO though.

    1. Not a lawyer, but maybe I can pick up on your approach, Jimmy. Basically the right doesn't want equity because that would leave the right powerless to impose injustice by law.

  3. I want to commend Oklahoma on prosecuting the woman that had a miscarriage…hopefully the prosecutor that has jurisdiction over the Santorums will prosecute them for manslaughter and child endangerment for humping without protection over 46 years of age.

    1. Are you mentally ill?

  4. Debs v. United States upheld the criminal conviction of Eugene Debs for interfering with recruitment efforts based on speech opposing WWI. Its short opinion involved evidence and statutory construction. The First Amendment wasn’t mentioned).

    What in the world does this case have to do with equity? Why would whether the US has equity jurisdiction in US v. Texas depend on it?

    1. You are thinking of the second Debs case. Look up the time a couple of decades earlier when Debs first came before the Court.

      1. I see. It’s a typo. Professor Bray linked the wrong case.

  5. Who cares? Not a criticism, a literal question. Of the 3 or 4 justices on the Supreme Court who will not let the outcome drive the reasoning, which of them cares?

  6. Lucid & salutory post by Professor Bray.

    It seems right to me for Prof. Bray only in tentative terms to opine that "it *may* all come down to [In re] Debs".

    A live point of distinction, I should think, is that the injunctive decree in favour of the US in In re Debs (1895) involved, and was expressly held to depend for its reasoning on, a demonstrably *inter-state* dimension to the impugned conduct. The same can, perhaps, be said - at least on the determinative "inter-state" criterion - for the injunction affirmed in favour of the US and against an Illinois state agency in Sanitary District v. United States, 266 U.S. 405 (1925) (per Holmes AJ).

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