The Volokh Conspiracy

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


Limiting Principles and SB8

How far do the plaintiffs' arguments go?


As noted in my prior post, the plaintiffs in the SB8 cases, both the clinics and the United States, seem to recognize that the remedies they're asking for are quite extraordinary. Letting private parties sue judges and court clerks over an unconstitutional law, for example, would be what Chief Justice Roberts described in his VOPA v. Stewart dissent as "a substantial and novel expansion of what we have also called 'a narrow exception' to a State's sovereign immunity." (To quote a later passage of his dissent: "This sort of suit was not only anomalous and unheard of at the time of the founding; it was anomalous and unheard of yesterday.")

The plaintiffs' defense is that SB8 is extraordinary too. Yet two "extraordinary"'s don't make a right: presumably the unusual features of SB8 wouldn't justify just any relief, such as ordering Texas legislators to vote for the law's repeal, or ordering Texas citizens to vote for different legislators.

In any case, however hard it is to match one "extraordinary" with another, there's a deeper problem here. Whether private parties can sue court clerks, or whether the U.S. can sue a state to enjoin a law its executive doesn't enforce, are yes-or-no questions: either they can or they can't. But the degree of chilling effect a statute imposes is just that, a question of degree. The plaintiffs need a limiting principle to explain how much chilling effect is too much, and when their new forms of relief start to kick in.

Of course, judicial opinions don't really need limiting principles; a reversal in either case could be written as good-for-this-train-only. But it wouldn't stay good-for-this-train-only: private parties and future administrations have too much interest in using the amazing injunctive powers the Court would have created for them. So when, exactly, will a state law justify these new kinds of suits?

Here are some possible options:

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits. This is commonplace; as Justice Breyer noted, it occurs whenever anyone claims that a rule of tort or property law might violate the Constitution. Think punitive damages under BMW v. Gore, defamation claims under New York Times v. Sullivan, or restrictive covenants under Shelley v. Kraemer—all of which were brought and litigated by private plaintiffs and defendants, with the constitutional issues raised as defenses, and without any injunctions against judges or court clerks. If the law allowed for suing judges or clerks under statutes like these, then we should have seen some of these suits already.

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with the intent of challenging a judicial precedent. This kind of rule would make test cases unconstitutional. States challenge judicial precedents all the time, usually in ways that allow (under current doctrine) for immediate pre-enforcement review. The plaintiffs' problem isn't what Texas intends, but that it might actually succeed, discouraging the exercise of Roe– and Casey-recognized rights without having to overturn Roe and Casey first. Yet the federal government structures its conduct to avoid judicial review all the time—such as by using enforcement discretion under Heckler v. Chaney rather than implementing a new regulation that might be contested under the APA. As far as I know, the DOJ hasn't suggested that such intent "nullifies" the relevant statutes or the judicial decisions construing them, justifying an injunctive suit against the United States under the APA's waiver of sovereign immunity. So the intent to get out from under judicial precedent doesn't seem to be doing much work on its own.

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with intent to challenge precedent, without a need to show injury. Citizen-suit provisions are commonplace too. Suppose a state adopted a false-advertising law, enforceable by anyone who saw an offending advertisement, that was contrary to the Court's current commercial-speech doctrines (cf. Nike v. Kasky). These kinds of laws show up all the time, but somehow we haven't yet started suing defendant classes of court clerks. Also, this kind of limit provides an easy roadmap to states to evade the restriction; they can just limit the universe of plaintiffs to a large group of people who do have some connection to the case. (Say, by giving an SB8-like right of action to anyone related to the unborn child within five degrees of consanguinity, or to any couples on a state-run adoption waiting list, or by declaring abortion a private nuisance that may be abated by anyone within 1000 feet of a clinic.)

Whenever a state enacts an arguably unconstitutional law, enforced by private lawsuits, with intent to challenge precedent, without a need to show injury, and with very heavy penalties. Texas didn't need to limit itself to a minimum of $10,000 in statutory damages; it could have picked $1 million instead. But here, the chilling effect ultimately comes from the fact that no one knows whether the Court will uphold Roe and Casey. If a state tried to proscribe conduct that's obviously protected by the Constitution, such as by banning handguns or Torah scrolls, then the plaintiffs would all lose; indeed, they'd be forced to pay attorney's fees under Rule 11 or its state-law equivalents.

The chilling effect doesn't come from being sued. Anybody can be sued, at any time, for any reason or for no reason at all. Some weirdos could sue you right now for $1 million for possessing a Torah scroll. They wouldn't even need a state law pretending to tell them that they can. And they're not even subject to any federal injunction that would have them found in contempt and thrown in jail. The reason why you don't lose sleep over this is that their suit would be dismissed as frivolous on day one and they'd be forced to pay your attorney's fees. The worry with SB8, by contrast, is that the lawsuits might actually proceed.

Which brings us to another possibility: Whenever a state does all of the above, and adds barriers to defensive litigation too. Texas's argument is that clinics should raise their constitutional arguments defensively, once sued. Yet SB8 makes the job of defending these lawsuits much harder. It doesn't just create a cause of action; it lets plaintiffs lay venue anywhere in the vast state of Texas, shields them from preclusion from losses against other defendants, protects them from having to pay attorney's fees even when their arguments are frivolous, and purportedly limits the applicability of potential constitutional defenses.

Some of these barriers are less worrisome than others. Plenty of actions permit the plaintiff to lay venue in their home district, and there's no constitutional right to non-mutual issue preclusion, binding one party by a prior loss against someone else. But all of it is overkill, and some of it may actually be unconstitutional on its own. For example, if Casey's undue-burden test really came from the Constitution, then no state would have power to suspend or limit its terms. Or if a state generally provides for attorney's fees for the victims of frivolous and harassing litigation, taking that protection away only for the defense of one particular constitutional right might well count as an abridgment of that right, if such a right exists.

Yet here's the key issue: these constitutional arguments, too, can be made in defensive litigation. In a state court suit, it's perfectly possible for a provider defendant to argue that the suit is frivolous, that the lack of attorney's fees is unconstitutional, and that the court should award fees notwithstanding SB8. Or it can argue that the heartbeat rule imposes an undue burden, that the statute takes an unconstitutionally narrow view of such burdens, and that the court should therefore grant a motion to dismiss regardless of what the statute says. If the state court disagrees, the defendant can appeal; and if the state supreme court disagrees, the defendant can seek cert.

So here, too, there's no separate need for brand-new relief against judges or court clerks, so long as the Supreme Court is on the job—unless there were a constitutional right to pre-enforcement review, which there isn't. Or, if Congress perceives such a need, as it perceived a need for § 1983, it can pass a statute under Section Five of the Fourteenth Amendment, which gives the creative pen to Congress, not to the courts.

Section 1983 was a great idea, but no one thinks the courts could have invented it on their own. So why are they able to invent new actions and remedies here? Texas won't make this argument, but SB8 could be a really bad law, one that Congress should really do something about, without a preenforcement suit being legal already. The essence of judicial restraint is recognizing that some problems are up to people other than judges to solve.

In the meantime, the Supreme Court can cabin these problems by reminding people that it's on the job—that the power to create strange causes of action is not the power to destroy while this Court sits. It could say that there are serious questions about the constitutionality of SB8's substance as well as its attorney's fees provisions; that anyone actually sued under SB8 would be able to seek a stay of any money judgment, ultimately appealable to this Court; and that any prevailing defendant under SB8 would be able to make any available argument as to the unconstitutionality of the attorney's fees bar, again ultimately appealable to this Court. That would do as much as one lawfully could to avoid the chilling effect, given the preexisting weaknesses of Roe and Casey.

In other words, the plaintiffs' problem isn't just a line-drawing problem, that we'll have hard cases about when to grant extraordinary relief. The problem is that the specific cases in which extraordinary relief might be merited are also the cases in which such relief might not be necessary—cases that we can deal with using our ordinary tools of defensive litigation. And if we can't deal with them that way, we can seek novel legislative remedies instead. Either way, we can stop our search for a limiting principle; in fact, we shouldn't begin it.

(continued here)