New Essay in Newsweek: "In Texas Abortion Case, Kavanaugh and Barrett Caved to Judicial Supremacy."

"In short order, the two newest members of the Court have sipped from the trough of judicial supremacy."

I wrote an essay at Newsweek about the S.B. 8 oral arguments. It is often precarious to read the tea leaves, but the brew here was quite strong. And my prognosis is bleak. The piece is titled, In Texas Abortion Case, Kavanaugh and Barrett Caved to Judicial Supremacy.

Here is the introduction:

On Monday, the U.S. Supreme Court heard oral arguments in two challenges to S.B. 8, Texas' new abortion law. The "fetal heartbeat" statute allows private citizens to sue those who perform, aid or abet abortions. The government itself is expressly barred from enforcing the law. Texas cleverly made it difficult, if not impossible, for abortion providers to block the enforcement of S.B. 8.

Yet, two members of the Court seem prepared to creatively jettison long-standing precedent to stop the law nonetheless. Regrettably, Justices Brett Kavanaugh and Amy Coney Barrett have succumbed to judicial supremacy. A defeat here for Texas will be short-lived. But the long-term impact of this judicial descent will endure for a generation.

From the conclusion:

Three decades ago, Justice Sandra Day O'Connor observed that "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion." She was right. When abortion is at issue at the Supreme Court, all bets are off.

In time, Justices Kavanaugh and Barrett may very well produce rulings that advance judicial conservative principles. But arguments yesterday paint a bleak portrait of the road ahead. Conservative lawyers, and Federalist Society members in particular, should no longer feel compelled to apologize for or defend these two jurists.

The Texas case is certainly not the first, or the last straw. In case after case, Justices Kavanaugh and Barrett have denied review to resolve pressing issues concerning the free exercise of religion, freedom of speech and other core constitutional areas. And where they have ruled, they drag their feet with the veil of moderation. Yet with abortion, they are prepared to bend over backwards, and modify long-standing precedent, to ensure expeditious review is permitted. Barely two months ago, both jurists allowed S.B. 8 to go into effect. They may now regret those rulings.

In short order, the two newest members of the Court have sipped from the trough of judicial supremacy

For those who wish to read more about judicial supremacy, my article on Cooper v. Aaron may be of interest.

I will have much more to say about this case--in particular the significant problems with permitting suit against the clerks.

Comments

[Gandydancer]

I haven't felt the slightest impulse to defend ACB since she declined to rehear the 4-4 "Can only the legislatures and not the Secretary of State rewite election procedures" case.

So, the blinkers have dropped from the eyes of Robets-in-a-skirt fanboy Josh Blackman? Better late than never, I suppose.

[Stephen Lathrop]

I like the part about, "Federalist Society members in particular," It's forthright.

[loki13]

I was waiting for JB to post and embarrass himself. After all of his school-girl gushing over SB8, I just couldn't wait for the salty tears.

Look, the only (only) surprising thing in this case is that there exists a small number of ideologues that have successfully managed to bamboozle the public that this should happen.

Let's be absolutely clear about what SB8 is-

Imagine you have a bunch of judicially-created rules. Right? These aren't laws of nature. It isn't science. It's just the accumulation of rules over time (procedural stuff, like who you need to sue kind of things) that allow litigants to know what to do.

Then you get someone who thinks they are too clever-by-half, and they say, "Aha! Imagine if we just craft laws that take advantage of these made-up rules to ensure that the thing that these made-up rules are supposed to allow, can't happen at all! What will happen then, huh?"

And the obvious answer... or, at least, what should be the obvious answer in a common law system, is that judges will smack that down. Because that's how the law is supposed to work ... heck, it's really the whole reason we ended up with courts of equity to begin with.

Anyway, it's all mostly irrelevant from a substantive point of view because there was already the cases teed up for argument regarding abortion. I think that's what ACB and Kavanaugh missed the first time around- probably just thought it didn't matter, because it was only a matter of time. But allowing this type of BS chicanery to continue would have deleterious effects on the administration of justice.

By the way- I did appreciate that JB would keep referring to how SB8 was like Hydra .. strike one part down, another part rises up. Of course, Hydra is evil. The type of people that would delight in destroying the rule of law. Hmmm...

[Joe_dallas]

As loki correctly notes - procedural rules are paramont.

"The "fetal heartbeat" statute allows private citizens to sue those who perform, aid or abet abortions."

My question is how do private citizens have standing to sue?

caveat - I am pro life, but I think the procedural issues in SB8 are terrible.

[Aunt Teefah]

They have standing because Texas law gave them a legally protected interest, and the right to recover statutory damages. States can create all sorts of substantive rights (even weird ones like here), and the invasion of such a right establishes standing.

[David Nieporent]

My question is how do private citizens have standing to sue?

The short answer: they might not, but whether they do is a question of the jurisdiction in which a suit is filed.

In federal court, standing is defined by the courts to be a constitutional thing, and congress cannot just convey standing on any random person to sue for anything. (This used to be a conservative position, with liberals arguing for more broad standing.) The Texas Supreme Court appears to have done the same under the Texas constitution, so that may be an avenue for abortion providers to defend against SB8 suits in individual cases.

But absent such a state constitutional provision, a state can statutorily confer standing on anyone for anything.

[David Nieporent]

I was waiting for JB to post and embarrass himself. After all of his school-girl gushing over SB8, I just couldn't wait for the salty tears.

The best part of Prof. Blackman's hackery is the headline, written in the past tense about something that hasn't happened yet. (On the one hand, people don't ordinarily write their own headlines. On the other, JB had plenty of opportunity to disclaim the headline — as Prof Volokh has in other instances — and he did not.)

The other best part of his hackery is that he argued that the Supreme Court decisions aren't the law of the land — only the constitution itself is — but then he attacked Kavanaugh for not respecting the "plain text" of… Ex Parte Young. Which, last I checked, is a judicial decision, not constitutional text.

[Dilan Esper]

Right on both counts.

[M L]

Are you talking about "made-up rules" like the one that the US Constitution prohibits States from outlawing the killing of unborn humans? That one's a real hoot.

[Sarcastr0]

The nihilistic whattaboutism of the Pro Life Justifies the Means crowd really hurts the general pro life movement.

[Gandydancer]

Except as regards abortions not protected by Casey (when current fetuses start becoming viable, that is) SB8 is a nothingburger unless Casey is revisited. The uidea that it poses some sort of emergency requiring SCOTUS inventiveness to cure is retarded.

But Trump let the Federalist Society types pick Kennedy's Choice and Roberts-in-a-skirt, so it was only a question of WHEN they would "grow". Gawd, I hated the choice of Gorsucks after he chose to to feature his gormless defense of District Court malfeasance in De Niz Robles in his campaign for Scalia's seat, but it turned out it was all downhill from there.

[bernard11]

From the linked article:

Generally, when Adam sues Betty, that judgment only concerns Adam and Betty. Cindy is not subject to that ruling.

I've never quite understood this. Did Brown only desegregate Topeka schools?

[Krychek_2]

Technically, yes. But it also established a binding precedent so that anyone who wanted to sue any other school district could point to Brown. If School District X is threatened with a desegregation lawsuit, its lawyers will presumably tell it that Brown controls and they can't win. So, they can either desegregate voluntarily, or get sued and be ordered to desegregate.

[David Nieporent]

Just to be clear, Prof. Blackman is attacking Cooper v. Aaron. He's arguing that even after Brown, no school district had to desegregate unless and until it was individually sued and lost.

[Gandydancer]

Indeed Little Rock did not have to desegregate until it lost in Cooper v Aaron. How do you imagine it happened?

[Martinned]

Yes. The exact way that a judgment of the Supreme Court affects non-parties is an example of the "quiet bit" that gets said out loud all the time. Basically the Jim Crow states went to war with the Warren Court, and the Warren Court won, but possibly by making stuff up. They developed the common law of the constitution, just like the court of Ex Parte Young did, and just like today's court will have to.

[Dilan Esper]

Basically right, although I would argue that since the Constitution requires a common law system (in both Art. III and the Seventh Amendment), that's actually the only possible result. It would be unprincipled and wrong to hold that the judiciary is powerless to construct rules to protect its judicial review power.

As Kagan said, this happened because "some geniuses" thought that they could come up with a way to thwart a rule of law promulgated by the U.S. Supreme Court. Courts aren't going to allow THAT.

[ReaderY]

It seems to me that the idea that a state can’t use legal strategems to completely get out of federal judicial review for violations of core constitutional rights - whether textual, old, and indisputable or atextual, recent, and disputed - is a principle that has nothing whatsoever to do with abortion or anything one might think about the principles involved.

And frankly, shame on Professor Blackman for getting so caught up in the politics of abortion as not to see this basic principle.

The Civil Rights Amendments were intended to have teeth and be enforcible against recalcitrant states notwithstanding legal strategems.

I have consistently disagreed with the Supreme Court’s abortion prudence, But Justices Barrett and Kavanaugh are completely and obviously right that the principles involved here have nothing whatsoever to do with what one thinks about abortion. There is no point in having constitutional rights if a state or Congress can easily evade judicial enforcement of them.

Shame on Professor Blackman for not seeing this.

[ReaderY]

Justice Alito raised the issue that Justice Blackman presses here - that SB8 is just a plain old ordinary piece of run of the mill legislation, each of its pieces having individually appeared elsewhere, and the fact that the assembly as a whole hasn’t before shouldn’t bother anyone. Liberals are getting worked because this is about abortion! Nobody would care if this is about anything else.

Bullshit. Not only should we call a spade a spade here. We should give the stuff the spade is shoveling its proper name as well.

[Martinned]

I've found it useful to think of this by analogy to the law of defamation. If a state were to amend its libel laws in a way that arguably or definitely violated the 1st amendment, in what way would you be able to get a pre-enforcement remedy?

[ReaderY]

The difference is that libel law requires proof the plaintiff was personally injured by the defamation. A can’t sue B because B defamed C. A has to be personally defamed by what B did.

This is what distinguishes a civil tort system from a system of private attorneys general. In a civil tort system private parties are suing for injuries they personally suffered. In a system of private attorneys general, the state is the party injured. Justice Thomas suggested that in a system of private attorneys general, thev”private” plaintiffs can be regarded as suing on the state’s behalf, and hence as agents of the state.

This would make them legitimate defendants for an Ex Parte Young pre-enforcement suit in federal court.

[Martinned]

Some things are libellous per se. If you will, imagine what would happen if a state were to expand that category significantly.

[Dilan Esper]

Here's the defamation analogy. Imagine if a state dismantled its standing rules, presumed damages (already unconstitutional in certain cases under Times v. Sullivan), dismantled its res judicata rules, and allowed anyone to sue anywhere in the state for any defamatory statement of and concerning anyone and be awarded $10,000. Do the courts have to wait until a defamation suit is brought to invalidate that statute? What if it chills a bunch of legitimate political speech in the meantime.

I agree with conservatives that IN GENERAL, requiring defensive assertion of the Constitution is not unconstitutional. IN GENERAL. But that's because the reason for such requirements has nothing to do with trying to prevent judicial review of an issue. The Tax Injunction Act is just about making sure revenue gets collected; it's not about preventing taxpayers from ever raising their legal objections, and indeed although they don't win that often, taxpayers do challenge and sometimes win and get refunds of their taxes in court.

But SB8 is about thwarting judicial review, not some unrelated government purpose. So the "requiring defensive challenges is constitutional" rule does not apply to it.

[Martinned]

There you go.

[David Nieporent]

I don't think libel per se means what you think it means.

[Martinned]

I don't think the difference between not having to prove damages and not worrying about damages at all is as important as you think it is.

[David Nieporent]

Libel per se does not undermine, let alone abrogate, rules of standing.

[Martinned]

Neither does SB8. The plaintiff in an SB8 case is asking for thousands of dollars, so clearly that's not the issue.

[David Nieporent]

If you think those are parallel, you're not understanding the legal issues. A plaintiff filing a libel per se case must still have a concrete and particularized injury.

[ReaderY]

There are still two differences. First, plaintiffs have to prove the defendant libeled them. Libel pervse doesn’t make the utterance itself actionable, the utterance still has to be about the plaintiffs.

Second, states are very limited in what they can make libel per se. The category comes from the common law and in most states has hardly changed since. The First Amendment would sharply prevent states from creating new “libel per se” categories that wouldn’t generally be considered obviously injurious to the plaintiff’s personal reputation.

Hence, even when suing for libel per se, plaintiffs are still redressing their own personal injuries, not simply obtaining bounties for enforcing the state’s policies about bad speech.

[Martinned]

Well yes, but the whole point of the hypo is to imagine a reform of libel law that would violate the First Amendment. Otherwise it wouldn't be a very good analogy.

[David Nieporent]

But libel per se is not the path to such an unconstitutional reform. Allowing anyone who learned about a defamatory statement to sue would be.

[Gandydancer]

Shame on you for averring that SB8 "violat[es] core constitutional rights" when it clearly doesn't. As long as Casey remains the Supreme Court precedent no abortionist need worry about more than the most minor consequences (the possible cost of defeating a hopeless suit) for performing a Casey-compliant abortion.

[Martinned]

Really? That's the talking point you're going with?

[Gandydancer]

That's the fact. Do you have any counterargument other than ignorance-based disbelief?

[WPHDM]

On evading judicial review ...

Au contraire: The problem is self-inflicted

Planned Parenthood and allies filed 14 pre-enforcement suits in state court to enjoin Texas Right to Life from bringing (what would be) test cases in state court. TRTL is the largest anti-abortion org in Texas and was obviously selected for special litigation treatment because it posed the greatest threat to the abortion providers. The plaintiffs were successful. TRTL was restrained, and has not filed a single SB8 suit.

Now the argument in the SCOTUS is that somehow judicial review of SB8 validity is foreclosed, or that state court litigation followed by appeal the the SCOTUS in the regular course of litigation is inadequate to the point of requiring the SCOTUS to invent new doctrine ex machina for the occasion.

And the three pending would-be test cases against Dr. Braid in Texas state courts (by Stilley, Gomezy, and THP) weren't even mentioned at oral argument. Never mind that it's all about these private enforcement lawsuits. Instead, the nation was told that it is hard find an abortion provider willing to perform an abortion that might be followed by a SB8 suit to test its constitionality.

ABORTION ATTORNEY HEARRON: So ... it's difficult to find someone who is willing to even violate the law for a test case, I think Ex parte Young addressed all of that and said that, in fact, there is a -- a procedural due process violation.

One might wonder how the cautious jail-fearing ticket agents of yesteryear are even relevant when their analogue in today's controversy has already done the deed (performed an abortion admittedly in violation of SB8) and has already been sued for it. If SCOTUS grants relief against the clerks, what will happen to those pending suits? Will clerks become liable under Section 1983 for filing a motion for judgment that might be forthcoming? Or liable for refusing to do so, thus affirmatively denying the movant their right to petition? Will they only be able and willing - on pain of contempt or Section 1983 liability -- to file documents submitted by one side in the case? The pro-abortion side?

Perhaps Law Professors Wasserman et Rhodes have an answer.

This commentator is a bit baffled.

To repeat: Texas abortion providers endeavored to enjoin the filing of SB8 lawsuits in state court by private parties and were successful. And outside the scope of those temporary restraining orders (and one temporary injunction in favor of Planned Parenthood affiliates), three state-court SB8 actions are pending in which the state-court judges now stand to have their hands tied in violation of traditional notions of abstention/noninterference in pending state court proceedings, and comity.

[Aunt Teefah]

Wow, it's taken less than a year for Barrett to go from FedSoc MILF to traitor to the cause. Where's the loyalty, Josh? Truly, reactionaries cannot help but eat their own.

[Gandydancer]

UIt took her a lot less time than that. Josh was a holdout for missing the obvious.

[Don Nico]

Teefah,
Are you actually defending Barrett as being a real person who can think for herself?
What a welcome surprise.
BTW, that is the advantage of life tenure.

[OtisAH]

I say today’s Newsweek is the perfect fit for that. You know, if there’s no space available at the Epoch Times or Gateway. Anyway, I appreciate the effort you put in to make allowing states to “cleverly” nullify constitutional rights sound noble and righteous. You fail but you tried and that’s what’s important.

[Gandydancer]

Again, SB8 doesn't nullify any constitutional rights.

[wolfefan]

Hi Gandy. What do you think the point of SB8 is?

[Gandydancer]

Excitye the anti-abortion base with false hope? Set the Libs hair on fire? Prepare for the fantasy event that SCOTUS substantially cuts back on Casey?

What would you suggest? No Casey-compliant abortionist can be successfully sued for the forseeable future. That's a fact.

[QuantumBoxCat]

Looks to me like Kavanaugh and Barrett embraced judicial independence rather than cave to the ideological organizations that pushed their appointments

Why does Josh hate judicial independence?

[OtisAH]

“Because they were sent there to erase the second half of the 20th century, not for ‘judicial independence.’”

[Gandydancer]

He'd love it if the pro-abortion bloc showed any, but the DEms are good at picking idealogues.

[Kords]

"A defeat here for Texas will be short-lived. But the long-term impact of this judicial descent will endure for a generation."

I cannot think of a single reason to believe that "judicial supremacy" in this context should be of greater long-term concern than allowing laws structured like S.B.8 to fundamentally undermine every right protected by the Constitution. It's not even close, really.

[Michael Ejercito]

S.B 8 is structured like laws against libel and slander.

[IPLawyer]

No it's not

[wolfefan]

Could you say a little more? I followed a libel suit in TX fairly closely over the last couple of years - Vic Mignogna's failed Threadnaught suit. I don't see a lot of similarities, but IANAL so could easily be missing something.

[Gandydancer]

The repeated baseless assertion that SB8 does that is tedious in the extreme.

[LawTalkingGuy]

If it was so baseless then why did Texas concede at oral argument you could use this exact same set up on guns?

[Gandydancer]

Because of course you can. But a law authorizing suits against, e.g., selling guns CONDITIONAL on Heller being "overturned" would ALSO be a nothingburger.

I saw that idiot Somin's column on how that was a devastating concession by the SG, but it isn't.

[David Nieporent]

It's amazing how everyone is dumber than you, except Prof. Blackman who you mindlessly parrot no matter how much you have to make up to do it. ("Jacobson never got vaccinated")

There's no "undue burden" test that has been articulated wrt the second amendment, but SB8FORGuns that caused all gun shops to stop selling guns would not be upheld by any judge who wasn't anti-RKBA.

[WPHDM]

CALLING IT BY ITS NAME IS DIFFERENT FROM NAME CALLING

Blackman: The "fetal heartbeat" statute allows private citizens to sue those who perform, aid or abet abortions.

Apparently Prof. Josh is under so much peer pressure from his abortion-favoring colleagues (some of whom would aid & abet in the quest to bankrupt pro-life colleagues by imposing Section 1983 liability on their advocacy) that he doesn't even muster the temerity to call S.B.8 -- as enacted -- the Texas Heartbeat Act. This just so happens to be the Act's official title and is in no need of relativizing quotation markes or author-stance signals such as "so-called".

And what about the Oxford comma? Might be relevant to severance issues perhaps.

AN ACT
relating to abortion, including abortions after detection of an
unborn child's heartbeat; authorizing a private civil right of
action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Texas Heartbeat
Act.
SECTION 2. The legislature finds that the State of Texas
never repealed, either expressly or by implication, the state
statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113
(1973), that prohibit and criminalize abortion unless the mother's
life is in danger.
SECTION 3. Chapter 171, Health and Safety Code, is amended
by adding Subchapter H to read as follows:
SUBCHAPTER H. DETECTION OF FETAL HEARTBEAT
https://statutes.capitol.texas.gov/Docs/HS/htm/HS.171.htm#171.201

[phoqueue]

the two newest members of the Court have sipped from the trough of judicial supremacy

Oh, no! Anything but that, Josh! The judicial power must be stopped!

[Gandydancer]

Yes, it must. Or our form of government is dead.

Did yiou imagine you'd said something clever?