The Volokh Conspiracy

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

Supreme Court

Supreme Court Grants Certiorari in Texas S.B. 8 Cases (Updated)

The Court will hear oral argument in the two cases on November 1.


The Supreme Court Court acted quickly to grant certiorari before judgment in Whole Woman's Health v. Jackson and United States v. Texas, the two primary challenges to S.B. 8, the controversial Texas abortion law. The order in WWH reads:

The petition for a writ of certiorari before judgment is granted. The briefs of the parties, limited to 13,000 words, are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Reply briefs, if any, limited to 6,000 words, are to be filed electronically on or before 5 p.m., Friday, October 29, 2021. Any amicus curiae briefs are to be filed electronically on or before 5 p.m., Wednesday, October 27, 2021. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter. The parties are not required to file a joint appendix. The case is set for oral argument on Monday, November 1, 2021

This is an incredibly rapid briefing schedule, and it applies to both cases. The Court's order in United States v. Texas also provides:

the application is treated as a petition for a writ of certiorari before judgment, and the petition is granted limited to the following question: 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.

This is an important legal question that extends well beyond the issue of abortion. It could, for example, implicate the federal government's ability to challenge state-level Covid policies (as both the Trump Administration and Biden Administration threatened to do, although concerning different sorts of policies).

Of note, in granting United States v. Texas, the Court declined to enjoin S.B. 8 (by lifting the stay entered by the U.S. Court of Appeals for the Fifth Circuit). Justice Sotomayor dissented from aspect of the order. Her dissent is here (accompanying the order in U.S. v. Texas).

Also of note, the Court did not grant certiorari on the cross-petition filed by Texas asking the Court to consider whether to overrule Roe and Casey. The Court may still address that question in the Dobbs case which will also be argued this term.

[This post has been updated to fill in additional details.]