The Volokh Conspiracy

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Making Sense of the S.B. 8 Rocket Docket

The Court seems to want to resolve the S.B. 8 procedural issue before Dobbs is even argued.


In recent weeks, I've urged the Supreme Court to resolve the S.B. 8 cases not on the shadow docket, but on the rocket docket. I wondered if the Court would schedule the cases for December, along with Dobbs. Or whether the Court would hear the case in January or February, as a caboose to Dobbs. Wrong, wrong, wrong. Today, the Court issued two orders that places both S.B. 8 cases on the super-fast track.

First, in United States v. Texas, the Court granted the petition for certiorari before judgment, but did not grant a stay. The grant was limited to a single question presented:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

As I read the order, the Court did not grant Texas's cross-petition, which called on the Court to overrule Roe and Casey. The briefing schedule is blistering. Only the procedural question is present. Opening briefs are due on October 27; reply briefs are due on October 29; arguments are set for November 1. The entire process will be complete in roughly eleven days. Without doing more research, I think this is the fastest briefing schedule since Bush v. Gore.

Justice Sotomayor wrote a six-page dissent. She repeatedly referred to pregnant "women," without a footnote about gender identity. Call the cancellation squad.

Second, in Whole Woman's Health v. Jackson, the Court granted cert before judgment. The Court set the same briefing schedule as in the United States case. This case has only one question presented:

The question presented is whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

There was no cross-petition here. Thus, neither case presents any questions on the merits.

My tentative take: the Court wants to settle both procedural questions by the end of this month, before Dobbs is argued. At that point, the Court will allow the Fifth Circuit to proceed to decide the case, with alacrity. And, presumably, both Texas cases may come back to the Court in January or so. The Court can then resolve both cases in the wake of Dobbs.

Given that the Court did not grant a stay here, I do not think there are five votes to stop S.B. 8. But there may be some strange compromise with this accelerated briefing schedule.

One final note. The Texas Attorney General was not given a fair deal here. The Supreme Court had already accelerated arguments in Ramirez v. Collier for November 1. Presumably, Texas SG Judd Stone was going to argue that case. Now, the Supreme Court has asked the Texas SG to brief and argue two other cases. This time schedule will stretch the office thin. The Court should move the Ramirez arguments.