Which Genie Will the Supreme Court Let Out of the Bottle?

However the Supreme Court handles the S.B. 8 litigation, it may unleash mischief in other policy areas.

The S.B. 8 cases present the Supreme Court justices with an interesting dilemma, apart from the questions of abortion and precedent. However the Court resolves Whole Women's Health v. Jackson and United States v. Texas, it risks setting a precedent that has implications for issues beyond abortion. In effect, the justices have to decide which genie they prefer to let out of the bottle.

Concluding that neither private parties nor the federal government may file pre-enforcement challenges to a law structured like S.B. 8 invites state legislatures to replicate its various features in laws targeting other constitutionally protected rights. This is the concern raised in the brief filed by the Firearms Policy Coalition I highlighted earlier. Gun rights are the most likely target of such laws, but we could imagine others (including spending on political speech). This is one of the genies.

Concluding that the federal government may file suit in equity to challenge and enjoin and law like S.B. 8, without express statutory authorization, on the other hand, could unleash a different genie. Allowing the federal government's suit would open the door to further such litigation in defense of constitutional rights that the current Administration prefers. What might this look like? We got a preview during the Trump Administration when Attorney General Bill Barr suggested DOJ would consider actions to challenge state COVID-19 restrictions that infringed upon religious liberty or other interests. Barr's statement turned out to be bluster. But if the Supreme Court green lights DOJ's brief here, the next administration could use that precedent to challenge state laws. This is another genie.

Concluding that private parties may sue to enjoin enforcement of S.B. 8, such as by suing all judges or courts as a class, could also unleash a genie, as it would have the potential of greatly expanding pre-enforcement challenges on constitutional grounds. It could even have the effect of establishing a de facto constitutional right to pre-enforcement review, despite the contrary holding of Thunder Basin Coal v. Reich.

The point of this post is not that any one of these resolution is better or worse than the others. Rather, it is simply to observe that the Court is in a challenging position. Given how S.B. 8 was carefully crafted to frustrate pre-enforcement judicial review, authorizing such review risks unleashing one genie. Yet refusing to authorize such review will effectively unleash another.

Comments

[Rev. Arthur L. Kirkland]

No half-baked, reflexive, partisan, downscale suggestions, interpretations, or outrage? Catching a breath and thinking before publishing a measured observation?

Thank you, Prof. Adler.

[Lee Moore]

Well, usually there's the kick the can down the road option, including kicking it back to a lower court to see if they have any ideas.

But with the accelerated schedule and Roberts having already shown his cards, it looks like they're going to go for the let's pull a rabbit out of the hat to squish SB8 and hope nobody notices that it's not a rabbit, but a genie.

And once they've pulled it out they'll be committed to it, until Roberts, Kavanaugh and Barrett are all dead or retired. So thirty years minimum, maybe forty ?

[Rev. Arthur L. Kirkland]

" And once they've pulled it out they'll be committed to it, until Roberts, Kavanaugh and Barrett are all dead or retired. So thirty years minimum, maybe forty? "

That observation ignores the all-important Rule of Thirteen -- perhaps calculatedly.

On this other hand, this day seems a natural for whistling past the Graveyard Of Conservative Dreams.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The wonder to me (IANAL) is that it's taken this long for a state to pass such a law. Others have said the ADA and some pollution laws were first, but I gather they were civil, SB8 is criminal, or at least more hardcore.

Seems to me there must have been some history of legal system changes that enabled SB8, such that SB8 would not have been possible, 10, 50, or 100 years ago. That would be an interesting article, but it might get so technical that only lawyer nerds like Josh could understand it.

[Brett Bellmore]

Wouldn't the simplest approach here be to declare that the ex post facto clause applies to civil litigation, and so SB8's threat to hold people liable for actions which were held to be constitutionally protected at the time they were engaged in must fall? Without that clause, there's not much left except a testing requirement before abortions.

[WPHDM]

HEXENMEISTER: IMPROVIDENTLY GRANTED 

Adler posits a false dichotomy of genie choices. The SCOTUS should reverse itself on the in tandem pre-judgment writ grant and let the lower courts proceed, both the Fifth Circuit (2 cases on appeal) and Texas state courts (14+3=17 pending in district courts, 14 of them consolidated by the Texas MDL Panel).

Texas abortion providers, funders, and allies filed 14 lawsuits against Texas Right to Life and obtained courtesy walk-in TROs from sympathetic lady justices in a venue that Texas jokingly refer to as the People’s Republic of Austin, then complained in federal court that Texas (the State) had insulated SB8 from being challenged.

For good measure, they and the DOJ are now doing their level best to swat down the three pending SB8 lawsuits filed against Alan Braid, MD – i.e., the potential test cases as so recognized by Professors Wasserman and Rhodes in multiple law-review-grade analyses, trying to foreclose the litigation of SB8 constitutionality in state court.

Meanwhile Planned Parenthood has already moved for summary judgment on its declaratory judgment claim against Texas Right to Life in Travis County state district court (even post-MDL Panel consolidation, these offensive-posture cases remain pending there), but everyone is hush-hush about it because that would undermine the clamor for the SCOTUS to act instanter on the shared pretense that there is no other way.

By getting abortion-friendly district court judges to preclude, deter, and enjoin state-court SB8 litigation, the abortion rights zealots (to mirror the rhetoric of their legion of academic supporters) have created the very litigation calamity that they bewail. Purported litigation calamity, that is.

SCOTUS should invoke the *chutzpah doctrine* and send these litigants back to state court.

Self-declared pro-choice SB8 litigator Felipe N. Gomez even wants the U.S. to be a party-participant in his lawsuit against Dr. Braid (while the DOJ opposes his attempted intervention in U.S. v. Texas), alongside the more adverse State of Texas and General Ken Paxton (who would be called upon ex officio to defend challenged state laws when the State is not already a party, or is not an eligible one). So the DOJ could do Gomez the favor of joining his cause and slug it out over SB8 in Dr. Braid's hometown. Cause No. 2021CI19920 in Bexar County, Texas (San Antonio). 

[ReaderY]

Are you by any chance aware thst there exists a Supreme Court,l? Are you aware that district judges have a duty to follow its precedents? Are you aware that the Supreme Court has specifically upheld the statutes you are referring to?

[QuantumBoxCat]

Seems like a good opportunity for the Court to hand down a judgment accompanied with a badly fractured plurality opinion. If no single opinion garners 5 votes, then the plurality rationale gets watered down and becomes less powerful when used in future cases. The Court then leave it to the multitude of lower courts (and competing interpretations of council) to work through future cases, likely providing different applications of the various opinions. In a future case (hopefully not involving abortion or guns) the Court could provide greater clarity based on a lower court rationale it finds most workable.

Since the case involves abortion, an issue which already tends toward fractured opinions, this seems like a possible outcome, even if not done intentionally. The Court already is inherently incapable of providing any legal clarity on the issue.

[ReaderY]

I think there has to be a narrowing principal. There are several features of this law different from routine civil tort law and other cases where constitutional challenges are traditionally raised only by private parties acting as defendents in state court.

One is the prohibition on government enforcement. This is unusual. There are many laws with private attornies general provisions, but they normally provide for private action in tandem with government action.

A second is the unequal allocation of costs. Plaintiffs can get their costs if they win, but not defendents. This is unusual in private tort litigation.

A third is the complete lack of any standing provision or requirement for connection to or injury by the illegal activity. Traditional tort litigation requires showing that one has been personally harmed in some way by the degendant’s actions. The Texas Constitution likely imposes limitstions, but the legislature didn’t intend any.

The forth is it addresses as an activity specifically and unambiguously covered by a Supreme Court constitutional precedent, and moreover was passed well after that precedent.

I think the combination of all four of these features could be used to distinguish this statute from the many other cases when civil defendants raise constitutional claims.

I agree that every time a civil defendant could raise a constitutional claim in some hypothetical futture case regarding some matter of state law, this doesn’t give the United States a right to sue prospective plaintiffs, the state, etc.

But I think a decision in this case could be limited to adress the specific unusual features of this statute, without opening the floodgates to the United States being able to sue states any time it wants.

[Public Quest]

Imagine this was a state law providing for private suits against interracial marriages, despite miscegenation statutes being violative of the Constitution. Upon filing, I imagine a court would direct a plaintiff to show cause why it should not be dismissed sua sponte, and then dismiss it.... and after a few of those, start imposing rule 11 sanctions and cost shifting for frivolous filings for future filers.

Someone will have to litigate S.B. 8 at their own expense as a defensive action (like Sullivan) but once done, prompt dismissals and rule 11 sanctions could neuter the S.B. 8 tactic without doing damage to any precedent.

[Rev. Arthur L. Kirkland]

" Imagine this was a state law providing for private suits against interracial marriages, "

Great work . . . you just alerted the lower-latitude racists at the Council For National Policy to their next crusade.

[David Nieporent]

SB8 forbids courts from awarding sanctions against plaintiffs.

[Public Quest]

>SB8 forbids courts from awarding sanctions against plaintiffs.

No, it allows a successful Plaintiff to unilaterally recover attorney fees, like the FCRA. It does not (and arguably cannot since courts have inherent power to sanction misconduct) prohibit sanctions for misconduct.

[David Nieporent]

It does indeed prohibit sanctions against plaintiffs for misconduct. You may be right that this would not extend to an inherent power of the Texas courts; I can't say, since that would be a question of Texas law and I am not a Texas attorney.

[Public Quest]

> It does indeed prohibit sanctions against plaintiffs for misconduct.

I cannot find any language to that effect in S.B. 8, but I welcome anyone pointing to specific language they think does so. It does prohibit awards of attorney fees and costs to a prevailing defendant under any rule of civil procedure, but that does not affect imposition of sanctions.

[WPHDM]

SB8 Template & Loving v. Virginia

Interracial relationships are widely accepted now, so this hypothetical is an unhelpful thought experiment because you can't get a legislative majority to enact an anti-miscegenation act in the first instance. Moreover, equal protection and equal rights under the Texas constitutioin (Texas ERA) have a sound textual basis, respectively, while constitutional "abortion rights" are a jurisprudential invention founded soley on judicial decisions that are subject to being abrogated or altered as a function of membership change on the SCOTUS.

As for sanctions, the counterpart rule in Texas state courts would be Tex. R. Civ. P. 13. Texas Ruled of Civilal Procedure 11 ("Rule 11") governs litigation-related procedural or substantive agreements between counsel/parties that are enforceable when signed and filed (thus functioning like a statute of frauds). The more relevant sanctions rule is 91a, which provides for speedy dismissal on the pleadings of claims that have either no basis in law of in fact, or both, and authorized an award of attorney's fees to the prevailing movant.

The argument about unilateral fee-shifting under SB8 is much hype about not much. Under the American rule, which Texas follows, common-law tort claims don't come with entitlement at attorney's fees, and the main fee-award statute - Chapter 38 of the Civil Practice & Remedies Code - does not entitle a prevailing *defendant* to fees either. Finally, how do pro-se litigants pose a big risk of attorney fee shifting when they don't incur any, even if they are attorneys? Not to mention that pro se plaintiffs typically lose against attorneys. Texas courts would probably follow Kay v. Ehrler, 499 U.S. 432 (1991). And why would Texas attorneys even take on SB8 cases if the consensus already is, or will soon be, that they are unwinnable (at least as to previability post-heartbeat abortions)?

[Public Quest]

The hypothetical is not dependent on the likelihood of such a law actually being enacted or the degree of permanence of any particular constitutional right. Constitutional rights exist not because of the strength of their textural existence, but because the final authority (SCOTUS) says they exist.

My point was that none of Prof. Alder's genies have to be unleashed and the traditional practice of constitutional challenges raised by a defendant can take their normal route. Whether the Federal government gets the order, or a successful defendant gets it, the end result is a SCOTUS order setting out the contours of constitutionality (or lack thereof) in S.B. 8 or any similar statute. After that point, our system relies on lower courts accepting that authority and tossing out frivolous filings that are facially contray to it. Even in Texas state courts, I doubt any judges would directly confront and refuse to follow direct SCOTUS precedent....and that doesn't differ whether the DOJ files the case that results in the order or whether it is a prevailing defendant. The end result is the same. The risk of other states trying similar S.B. 8 ploys is a minor nuisance at best. Once SCOTUS decides the first case, frivolous filings will be promptly dismissed.

Unless you believe in a potential wholesale abandonment of the rule of law by state court judges, who en masse decide to stop following binding SCOTUS precedents.

[Brett Bellmore]

"Constitutional rights exist not because of the strength of their textural existence, but because the final authority (SCOTUS) says they exist."

Not everybody is a legal realist. Indeed, I suspect most people aren't, outside the lawyer's guild.

[Brett Bellmore]

But, anyway, I agree with your general point: As soon as anybody actually sues under this law, the normal operation of the courts will end up with most of it suspended, and any future lawsuits being routinely dismissed.

The real concern here is the retroactivity provision, NOT the citizen enforcement. The citizen enforcement mechanism was just to complicate getting a pre-enforcement injunction, it's not where the rubber hits the road.

[Public Quest]

> The citizen enforcement mechanism was just to complicate getting a
> pre-enforcement injunction, it's not where the rubber hits the road.

Exactly. And there is no need to create new theories of standing (and the attendant side effects) so the federal government (or anyone else) can initiate a pre-enforcement challenge. Let the challenges be raised by proper parties (defendants) and other entities interested in it can contribute to the defendants' war chests and file amici briefs.

[floridalegal]

Two plaintiffs, two cases. Two legal issues and questions before the Court. US v. TX win for US Federal intervention and standing with legal reasoning and analysis around the 12th Ammendment. Whole Women's v. TX, TX wins. Private party doesn't have standing in nonState cause of action when there's never been a cause of action or when they are not even a tangential party.

Abortion is not substantive in the analysis and legal process. Dobbs will address Abortion and the continued use of current science 50 years ago with regard to viability is the same today.

In reality, SCOTUS is a 3-3-3 court grouping. I suspect that Breyer or Kagan could consider the international norm for regulation of abortions which would lend credence to upholding 15 weeks but in a concurense with separate legal analysis. The continued use and definition of viability will be the legal analysis.

[ReaderY]

I think it’s very unlikely that. Kagan, Breyer, and Sottomeyor would agree to a significant watering down of Casey. I recognize there’s a scenario in which the conservative side agrees to a slight watering down in exchange for a promise to not go any farther. But I don’t see the conservative side doing that either.

[floridalegal]

On the substance TX heartbeat struck down. Dobbs, 15 week's, upheld but there will be a range of concurenses with regards to the legal analysis.

[Brett Bellmore]

Agree on US v TX, just because the Court is a federal court, and has a track record of being much more deferential to the federal government than to state governments. If the federal government claims some new power or prerogative, the odds are always in favor of the Court letting them have it.

[MollyGodiva]

There is no dilemma. They can quash the suit against Texas while using the shadow docket to stop other laws that conservatives don’t like. The false assumption in this article is that the court had to be consistent.