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:

WHOLE WOMAN'S HEALTH, ET AL. V. JACKSON, JUDGE, ETC., ET AL.
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.]

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What amuses this IANAL most is the contortions everyone is going through over what even the authors admit is an unconstitutional law.

[DaivdBehar]

Cert, briefs, arguments are a sham show. The Justices will decide based on their subjective feelings, biases, and moods getting up that day. This is a joke.

[Armchair Lawyer]

Did the authors admit it was unconstitutional?

[ah....Clem]

Everybody knows it's unconstitutional whether they admit it or not. That is, SB8 is clearly unconstitutional as long as Casey/Roe are precedent. Texas can't enforce a law that deprives people of rights under the constitution, and the right to obtain an abortion (under certain circumstances) is current law.

As many others have pointed out, the non-enforcement enforcement mechanism cleverly engineered to avoid judicial review could be employed to curtail every other constitutional right, e.g. speech, religion, guns, you name it. (I'm at a loss to see how it could be applied to the quartering of soldiers, but I'm sure that there are some clever lawyers around who could cook up something).

If our rights under the constitution can be ignored in this manner by the states then they cease to exist in any practical sense. This is about a lot more than abortion.

[Brett Bellmore]

The thing is, though, that liability only kicks in once those precedents are overturned. Or if you did an abortion without checking for a heartbeat, of course.

"(e) Notwithstanding any other law, the following are not a defense to an action brought under this section:
(3) a defendant's reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates this subchapter;
(4) a defendant's reliance on any state or federal court decision that is not binding on the court in which the action has been brought;"

On these terms, it IS a defense if you are relying on a court ruling that's currently in effect, and binding on Texas courts.

So it seems to me that any lawsuit brought under this law right now would be pretty obviously dismissed the moment the defendant raised this sort of defense.

[Josh R]

But, a lawsuit brought after Roe is reversed for an abortion that occurred when Roe was in effect would be successful under the plain text of the statute. Thus, providers have mostly stopped doing abortions after 6 weeks in order not to expose themselves to future liability.

[Gandydancer]

A law that reminds abortionists that they don't have, subject to a statute of limitations, impunity for criminal (and, now, civil tort) acts committed while enforcement of those laws are enjoined does not violate any Constitutional provision.

[Gandydancer]

Repeating, with some editing, what I just wrote to Blackman's post on this subject:

The claim made repeatedly here is that it is a violation of due process for someone to be criminally convicted of an act committed when the controlling precedent was that the act was not criminal. SCOTUS’ decision in Walker (Rehnquist decision, Walker v US. 1980s, iirc) says otherwise.

[Gandydancer]

I misremembered the name. It was US v RODGERS (1984). And it wasn't a conviction that was allowed to proceed, it was an indictment allowed to stand. Unanimous Court.

[Gandydancer]

No, the authors didn't admit that SB8 is unconstitutional. They admit that awarding damages while Casey is still not "overturned" is not allowed and wrote SB8 so that it would not do that.

[robbbb]

So these dimwits on the court don't want us regular folk to think them partisan? This is not going to help.

How can this be so urgent as to hold a special super fast hearing, but not urgent enough to put a hold on it for the time being?

The implication of the need for speed is that the new law creates a situation where bad things might while it is in effect. If there is no danger of that, there is no need for speed.

if there is a danger, then it should be put on hold for now.

[Longtobefree]

It makes it pretty clear not killing babies is a bad thing.

[shawn_dude]

And that financially ruining people for supporting a civil right is perfectly acceptable.

[Gandydancer]

No one is in any danger of being ruined for performing Casey-legalized abortions unless Casey is overturned as regards its import for the legality of those abortions. In which case performing them wasn't "supporting a civil right" after all, was it?

[Alpheus W Drinkwater]

Perhaps because they aren't hearing arguments on whether SB8 is constitutional, but rather whether the US has standing to bring the suit challenging it. Prof. Adler doesn't explain why this would have wider implications, I thought the arguments would just pertain to laws like SB8 with this distinctive enforcement mechanism.

[Gandydancer]

In USvTX it is the legality of Pitman's remedy, not US standing, that is being questioned.

In WWHvJ the question is a counterfactual one, though whichever Justices wrote it presumably don't recognize this.

[not guilty]

The refusal to dissolve the Fifth Circuit´s stay is a significant victory for the coat hanger coalition. Shame on the Court!

[Longtobefree]

coat hanger coalition - band name?

[shawn_dude]

Brand name.

[Gandydancer]

Slur.

[Bob from Ohio]

By putting them together lie this, it seems they will split the baby. No US standing but abortionist standing so law gets overturned anyway.

[Longtobefree]

Just for the record, the baby is not split; it is crushed.

[Bob from Ohio]

Another abortion method is dismemberment.

[bernard11]

they will split the baby

I know I'm being a pedant, but this phrase, if intended to describe a compromise, is used inaccurately.

Solomon didn't split the baby. He never intended to split the baby. He plainly knew that that was a ridiculous idea.

His suggestion was a ploy to flush out the liar, because he rightly thought the true mother would give up the baby rather than let it be killed.

This happened very early in Solomon's reign, and I understand that some have suggested, I don't know quite why, that he knew who the true mother was all along, and he pulled this stunt as a sort of PR move, to generate a reputation for wisdom and, consequently, establish his legitimacy as king, since he was not David's oldest living son.

If that was his plan, it was certainly hugely successful.

[Bob from Ohio]

"this phrase, if intended to describe a compromise, is used inaccurately"

I used the current idiomatic usage. In common use it means "split the difference", which I could have used except this is an abortion case so baby works.

Lots of expressions have changed from their literal meanings. This is one of the them.

[bernard11]

Sure.

Like I said, I know I'm being pedantic.

But it still grates, partly or maybe entirely because it's not just a change of meaning over time. It's a complete misrepresentation of an actual biblical story.

Sort of like saying, "Nothing better than a Greek gift."

[Don Nico]

If should grate, bernard, when people think that they arre being clever, when actually they are just being wrong... again.

[Gandydancer]

There is no "standing" issue.

In USvTX it will be an earthquake if the novel remedy is not overturned. SB8 will continue in effect,

The "question" in WWHvJ is counterfactual. How many Justices had to sign on to pose it that way? Would Roberts + 3 be enough?

[Tom for equal rights]

Ironic that RBG was such a stickler for pain free execution ie Baze v Rees - see her dissent in Baze

But she saw no problem with not providing drugs so the fetus execution would pain free

[NToJ]

Add irony to the long list of things you don't understand.

[Tom for equal rights]

NToJ
October.22.2021 at 4:39 pm
Flag Comment Mute User
Add irony to the long list of things you don’t understand.

True - I dont understand why progressives are okay will killing an innocent fetus that feels pain with out any form of drugs to reduce the pain while at the same time while going to extreme lengths with the argument that a remote possibility any level of pain in the execution of a murderer is somehow cruel and unusual.

I guess it is because killing the innocent is not cruel and unusual.

but you may not grasp the hypocrisy

[NToJ]

I grasped what you think is hypocritical, despite your clumsiness. But anyway, a fetus is not the same thing as an adult. And an abortion is not the same thing as the state executing an adult.

[Brett Bellmore]

Well, no, ideally in an execution the person being killed isn't innocent.

[The Turtle Dove]

Not really following this, but if the US prevails, and the cause of action states a claim, and they they win on sovereign immunity, how could that reach the legitimacy of the stay from the district court or the legitimacy of the administrative stay from the circuit? (It can affect both, but how could either offer grounds for this interlocutory review?)

First glance, it seems the best the petitioners can hope for is the bypassing of a month-long stay pending the Fifth Circuit arguments, at which point they're either back in the district court making their case with the stay they already had, or out of court on the summary judgment for sovereign immunity. And I really question whether it's wise to rule on subject matter jurisdiction before the district court reaches final judgment, given the Protean nature of equity.

Just a quick take while procrastinating a bit, likely completely wrong, don't rely.

Mr. D.

[SMP0328]

States don't have sovereign immunity against the federal government. Are you thinking of standing?

[The Turtle Dove]

Correct. Crossed it with the other case, which is apparently at interlocutory review for denial of summary judgment motion relying on sovereign immunity; this one appears to still be in "stating a claim" territory. Thanks for the catch.

Mr. D.

[Gandydancer]

...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.

So the only question is the legality of Pitman's novel remedy. Wht SCOTUS sees a need to address this while it is not even in effect, and may never be, I cannot imagine.

[Commenter_XY]

Isn't this a federalism case, at it's core?

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.

The way I read that question, it is asking if the Federal government can proactively sue in court before a state law passed by a state legislature takes effect to override it. Is that a fair interpretation?

Has that question ever been addressed by a past SCoTUS? It seems to me that would really alter the structural balance between the states and the federal government if the answer is 'Yes'. And let's keep this in mind: the criterion used by the federal government to determine what state laws they would like to proactively stop would change with the election of a new POTUS.

Personally, I am glad SCoTUS is taking on the question (which I see as a federalism question) very directly and not dodging the issue. But I am very leery of what the result will be.

[Brett Bellmore]

Well, there's 'preclearance' under the voting rights act, but that derived from an actual statute with an explicit constitutional basis.

[Josh R]

I don't think the heart of the question is federalism. The DOJ took this extraordinary stance only because Texas worded the statute to cleverly avoid any pre-enforcement challenge in federal court even though the law plainly violates binding precedent. If SCOTUS rules in favor of the DOJ, I would expect them to limit the ruling to only these circumstances. Alternatively, they could rule that providers can sue in federal court and I would expect the DOJ would consider their lawsuit moot.

[Gandydancer]

For the umpteenth time, the law conforms to binding precedent rather than violates it. Now that the TX response to the DOJ request has made that point clear, and it's not just me saying it, it's past time to stop pretending that this hasn't been pointed out to you.

[Gandydancer]

I think you're overweighting the part of that sentence before the "and obtain". It's what's after the "and obtain" that's novel and remarkable.

Bed editing: That quote should end in a question mark, not a period.

[Stephen Lathrop]

Suggest the federal government's approach is far too modest. To put the question in general context, consider:

1. Federal constitutional rights are sovereign decrees.

2. No part of the federal government, including the courts, has any power to constrain the sovereign.

3. There may from time to time be a need for courts—pursuant to their power to say what the law is—to define the scope of a federal right, and to say whether particular conduct fits within or outside that scope. That is not in any way a power to alter the right.

4. No. 3 above does not apply with regard to S.B. 8, which plainly contravenes the already-adjudicated scope of the conduct, abortion, which it purports to govern.

With those points understood, the Justice Department ought simply to announce that it is not only empowered, but also actually required by the Constitution, by the federal law, and by previous Supreme Court precedents, to proceed against anyone in or outside Texas who attempts under color of Texas law to prevent abortions on the basis of S.B. 8. Prosecutions for violation of federal civil rights ought to be brought promptly against all parties who purport to enforce S.B. 8 in Texas courts, including any private citizens bringing suit, and any Texas officials, including judges, who participate. The charge should be criminal violation of civil rights under color of law.

The federal government should further take the position that under current federal law, every possible S.B. 8 question which the Supreme Court has power to address has already been decided, and that the Court cannot, under present law, do anything further with regard to the case without contravening sovereign will, which the Court is not empowered to do. Thus, so long as Roe remains the law, and until it is overturned, if ever, the Federal government will prosecute, starting immediately, and that it will do so regardless of what the Supreme Court might say, except in the event that the Court overturns Roe.

To avoid inevitable time wastage, I will say now, without being harangued to do it, that I have thought it over, and would favor the same kind of analysis with regard to gun rights under a Republican administration.