The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have no skill at reading judicial tea leaves, so what follows is a reaction to the discussion of the merits at oral argument, not a prediction of what a majority of Justices will actually do.
The basic problem in the SB8 suits is that neither case manages to pair a proper plaintiff with a proper defendant. The abortion providers are proper parties, but the judges and clerks they're suing aren't. The United States probably isn't the right plaintiff in its case, and the State of Texas probably isn't the right defendant either. And the arguments the plaintiffs make for overriding these considerations, given the extraordinary nature of SB8, desperately need a limiting principle they don't and can't provide—something addressed in the next post. (Update: now here.)
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Whole Women's Health. The provider plaintiffs in Whole Women's Health are clearly the right people to defend their own interests. But they're private parties, so they can't sue the State of Texas directly, and they have to find other defendants—most plausibly, putative defendant classes of judges and court clerks under Ex parte Young.
Their first problem, as Justice Thomas pointed out, is that judges are specifically exempted from Ex parte Young suits. The Court has allowed some suits directly against judges—say, for imposing bail in violation of the due process clause. But in those very cases, it's made clear that "Article III also imposes limitations on the availability of injunctive relief against a judge," and it's cited approvingly the claim that there's "no case or controversy between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute." That's pretty much what we have in Whole Women's Health.
The private plaintiffs' response is essentially, "hey, Ex parte Young was a fiction, so why not do more fictions?" But just because yesterday's judges pulled a fast one doesn't mean today's judges should too. (If you gained your house by adverse possession, that doesn't mean you can try ousting your neighbor.) Chief Justice Marshall, in Livingston v. Jefferson, faced a similar argument for expanding a longstanding fiction beyond its acknowledged boundaries, in the hopes of achieving an obviously just result. But he refused, saying:
"If this distinction be established; if judges have determined to carry their innovation on the old rule, no further; if, for a long course of time, under circumstances which have not changed, they have determined this to be the limit of their fiction, it would require a hardihood which I do not possess, to pass this limit."
If a fiction can be longstanding enough to be called law, then surely the longstanding limits on that fiction are law too.
So the plaintiffs turned instead to court clerks, who have to docket the SB8 cases, arguing that the "commencement" of a case can be enjoined under Ex parte Young. That equivocates on the meaning of "commencement." Ex parte Young allowed a suit against a prosecutor, on the theory that the prosecutor, by "seek[ing] to enforce" an act in "violation of the Federal Constitution," was in fact violating that Constitution, and was thus "stripped of his official or representative character" and "subjected in his person to the consequences of his individual conduct." But a clerk of court, when accepting a complaint, isn't seeking to enforce anything; he or she doesn't and can't make any assessment of what the complaint says! The party filing the complaint is the one who "commence[s]" the case, as well as the one who "seeks to enforce" the law. (This was also Ex parte Young's original reason why the judges are out: they don't act in "violation of the Federal Constitution" just by considering whether some state statute violates the federal Constitution! They're not being accused of doing anything against the law, so they aren't proper defendants for this lawsuit.)
Ex parte Young is generously called a "fiction" because it allowed this kind of suit against a commencing party's lawyer (the Attorney General), rather than against the commencing party itself (the State of Minnesota, which couldn't be sued). Maybe it shouldn't have; maybe the defendant and the government lawyer weren't really adverse. Either way, the clerk of court is definitely a neutral here: the people who stamp the papers aren't violators of the Constitution, stripped of their official character, just because some of the papers make legal arguments that are bad. Clerks of court might sometimes be the target of injunctions; imagine a clerk who discriminates among plaintiffs trying to file. But when the only claim is that the lawsuits are bad, the clerk is no more a proper defendant than the mailman who carried the complaints to the courthouse.
It might be convenient for the Court to close a perceived loophole by declaring the clerks to be proper defendants. But courts shouldn't permit suits against people who aren't legally liable in them, just because it solves someone else's legal problems.
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United States v. Texas. The U.S. doesn't have to worry about sovereign immunity, so in that sense it's a better plaintiff. But its rights aren't at issue under SB8, so there's a different concern of whether it's a proper party. The government argues that under In re Debs, which concerned the Pullman rail strike, the U.S. can bring suit in equity to enforce "its sovereign interest in ensuring that a State cannot nullify federal constitutional rights." Here, I outsource my views to Aditya Bamzai and Sam Bray, who rather persuasively argue that the Debs court, while going beyond strict proprietary interests, still relied on the government's property-like interest in the Nation's highways and waterways, and that Debs was perceived as a property-interest case by contemporaries. So, despite various bits of Debs dicta cited by DOJ, it's hard to read that case as opening the doors for suits by the United States whenever a purported "nullification" is at hand. Given that Grupo Mexicano requires courts to rely on traditional doctrines of equity, and not to create them out of whole cloth, the U.S. has an uphill battle here.
And in suing the State of Texas, it's not clear that the U.S. has picked the right defendant. Because no Texas executive officers enforce SB8 directly, what the U.S. really wants from its injunction is, again, to prevent state judges from hearing these suits, and to prevent state court clerks from docketing them. But although this argument doesn't need to invoke Ex parte Young, it faces the same kinds of problems. Texas judges aren't on "Team Texas": they hear cases and render injunctions against "the State of Texas" all the time, and we don't think of them as bound by their own injunctions. That's because "the State of Texas," when it shows up in court, is the State qua litigant—the executive power of the State, those officials with the legal right (as John Harrison describes) to put forth the government's resources to achieve the government's goals. So when "Texas" concedes in court that a state law is unconstitutional, we understand that the state legislature may well disagree with the position taken by "the State"—and we understand that state judges can decide between the two, as neutral arbiters, without somehow involving themselves in the dispute. (Sometimes judges do involve themselves in disputes; when this happens, they might be more proper targets for injunctions. But that's not what the U.S. or the private plaintiffs are claiming here.)
By contrast, the injunction the United States is seeking isn't against the executive power of Texas (which doesn't have any direct role in enforcing SB8), or against the State qua litigant (which doesn't appear in any SB8 suits), but against the State qua source of law; the idea seems to be that "Texas did this, and Texas must pay for it." But suing the State qua source of law is as bizarre as suing the State qua Texas-shaped patch of land in the American southwest. The State qua litigant is the only entity which can actually appear in court and against which a judgment can be entered. If the legislature purported to pass an unconstitutional law, its punishment is the one listed in Marbury—that "an act of the legislature, repugnant to the constitution, is void."
Besides, Texas law and Texas courts aren't coextensive. If a Texas abortion provider crosses the border into Oklahoma, and is there served with process and sued in Oklahoma state court (whose choice-of-law principles, let's assume, would ordinarily choose Texas abortion law), would the United States then have good grounds for suing the State of Oklahoma? Or consider the SB8 interpleader suit currently pending in the U.S. District Court for the Northern District of Illinois—must the United States now sue itself? The Solicitor General argued that injunctions against federal courts would be unwarranted, because federal plaintiffs (unlike SB8 plaintiffs) have to show injury-in-fact; but that wouldn't make the court's actions any more or less constitutional.
The U.S. would bind the Texas judges and clerks through an injunction entered against the state as a whole. Judges and court clerks do fall within the literal terms of Rule 65(d)(2), which extends to a party's "officers, agents, servants, employees, and attorneys," as well as all others "in active concert or participation" with them. But when a federal injunction issues against a state, we generally don't expect that these injunctions already bind state judges and court clerks under Rule 65(d)(2), forbidding them on pain of contempt from docketing future cases or resolving future disputes—e.g., by agreeing with the courts that ordered the injunctions. Does anyone think that federal judges are bound under Rule 65(d)(2) in regard to injunctions against the United States, when they merely decide cases related to those injunctions? How could such injunctions ever be modified under Rule 60(b)(5), if the very existence of the injunctions might forbid "enforcement" of the relevant laws?
If state judges and clerks don't go to jail, right now, for docketing and dismissing prosecutions brought under the state law enjoined in Arizona v. United States, then they shouldn't go to jail for docketing and dismissing cases brought after an injunction issues in United States v. Texas. And if the judges and clerks aren't covered by an injunction against the State as "officers" or "employees," then the private parties who bring the suits, in the hopes of recovering money for their own pockets and not for the state treasury, aren't covered under "active concert or participation" either. Unless, of course, the injunction is written specifically to include them—as the district court wrote the injunction here. But then the real defendant isn't just the State of Texas qua litigant, but the judges and clerks and private litigants as well, none of whom has been made a party in the government's suit under Hansberry v. Lee. And again, if the judges and clerks don't lose their official character under Ex parte Young by receiving SB8 complaints, it's not clear that anyone has anything to sue them for.
(Update: Continued here)