Principles and Limiting Principles for SB8

Worrying about reasons, not slippery slopes.


Talking about the procedural niceties in the SB8 litigation (as here, or here, or here) may seem rather callous. The device SB8 invented could be used to target any rights one cares about, including First Amendment rights of speech or religion. It could impose enormous penalties, chilling conduct that's almost-certainly protected by the Constitution, whenever a small risk of liability would be too much to bear. And it could forestall in practice the very challenges that would declare these impositions unconstitutional.

Along these lines, Ilya Somin argues that the Court should set aside some potential worries about limiting principles, because the slope is far more slippery on the other side. The danger of aggressive SB8-style laws is worse than the danger that federal judges will get trigger-happy with their injunctions: "If this results in overbroad injunctions that cover some officials who don't have relevant authority, there is no real harm in that, as the effect will be simply to enjoin them from doing things they cannot do anyway."

I don't much care for the structure of SB8, and I'd much rather that such devices were never used. If one agrees with Ilya that the Court should overrule Hans v. Louisiana, and that it should declare private individuals free to sue states, seeking a determination whether a given private cause of action is unconstitutional, then that seems like an appropriate course to follow here.

But that's a different question than the one actually facing the Court. To date, the Court maintains that Hans v. Louisiana was correctly decided (and I agree with them!), that there's no constitutional right to preenforcement review, that federal courts are required to act only in cases filed on proper grounds and between proper parties, and so on. The demand for a limiting principles is part of a demand for principles—a demand that the Court be principled in reaching its decision, that its judgment follow from premises that it's willing to defend in other cases too.

In the United States v. Texas suit, for example, one might claim that the U.S. has authority to sue states whenever they enact an unconstitutional law. But if the U.S. doesn't have that broad authority (something the Solicitor General concedes), then we need a limiting principle explaining when it can sue states: not out of a fear that it might do so too often, but as part of a coherent and honest explanation of why this case differs from others. Even an explanation like "this case poses too much danger to individual rights" asserts a general principle, namely that the U.S. gets to sue states whenever not being able to do so poses too much danger to individual rights. And then one might need to defend that principle in the context of other principles—such as that of Grupo Mexicano, that the federal courts' powers to hear such suits are constrained by traditional doctrines of equity, or that of Article I, that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States."

The problem facing the Court isn't one of slippery slopes, trying to predict what consequences might flow from either decision and how best to avoid them. It's one of legal justification, trying to explain why either decision would consist with the rules as they currently stand. Courts are expected to be open and forthright about their justifications, rather than to call them as they see them. And if the Court isn't willing explicitly to limit its prior language in Ex parte Young, Hansberry v. Lee, Taylor v. Sturgell, etc., then it shouldn't adopt a rule in this case that abrogates that language sub silentio.

Fortunately enough, we already have people in our government who can make decisions without needing to be principled, without explaining the reasons for them, and without the constraints imposed by current law. These people are hired to take the law as it exists and to change it into something better: we call them legislators. The rights protected by the Constitution already apply in state courts, whenever a case arises involving them; if we need a new means of asserting those rights in advance, not already contained in current law, we might need Congress to provide it.

That "Congress won't act" isn't a good legal argument for judges' raising or lowering tax rates or declaring war or peace. It also isn't a good legal argument for judges doing other things for which they lack authority, tempting as it may often be.

(Continued here)

NEXT: The SB8 Endgame

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  1. I don't much care for the structure of SB8, and I'd much rather that such devices were never used.

    When this is all over, I hope Jonathan Mitchell goes on record and discusses how he dreamt this thing up, and discusses his process in finding, and then thinking through all the legal issues.

    1. Isn't it obvious that dear lord infant eight-pound, six-ounce sweet newborn baby Jesus mainlined this legal insight directly into Mitchell's veins and synapses by divine miracle (maybe with a bit of help from the Federalist Society)?

      Thank you Jesus, thank you lord.

      1. Arthur, have you ever seen a law written like this go to SCoTUS this quickly - twice? Ever in your life? I have not.

        Whether it was Jesus, or the Federalist Society, I would love to hear this guys story.

        1. Few laws are this bad, as you would likely quickly recognize were an advanced, successful state to use a similar statute to eviscerate conservative preferences with respect to guns, superstition, and the like.

          1. Arthur, I have to tell you...the links to Youtube videos is not making it. 🙂

  2. There's already a test case.

    The real problem is the strategic mootness that states use to avoid judicial review. If SCOTUS didn't let states hang on to unconstitutional laws by dropping charges against specific individuals, then we could focus on the facts of the first test case or two under SB8.

    1. But the citizen 'prosecution' model of SB8 doesn't permit the state to drop diddly squat. So that's not an issue here. (Though it is a problem generally.)

      The real problem with SB8 isn't the citizen prosecution model, with the denial of parallel authority to the state. That's a weak shield against review, the courts will stop entertaining SB8 lawsuits as soon as appeals result in the award of damages being declared unconstitutional, pretty much inevitable unless the Court overturns its Roe/Casey jurisprudence.

      No, the real problem is actually the retroactive application of any such decision. It chills conduct in the present because you can be subject to liability for acts which are presently subject to rulings, Supreme court rulings, holding them constitutionally protected, if those rulings get overturned.

      THAT is the real threat to other civil liberties that needs to be addressed here, not who can file a suit.

      1. If retroactivity is the real threat, how should it be addressed, and who should do it?

        Damages could flow from S.B. 8 judgments that aren't in conflict with Roe/Casey jurisprudence. So, I'm not so sure that one award of damages being declared unconstitutional would stop courts from entertaining all S.B. 8 lawsuits. Given that there is no protection against frivolous S.B. 8 lawsuits, new filings (after an award was declared unconstitutional) could be crafted around that ruling. If only to cause litigation expense for the defendant under the lopsided fee-shifting scheme employed by S.B. 8.

        1. "Damages could flow from S.B. 8 judgments that aren't in conflict with Roe/Casey jurisprudence."

          Not seeing a problem with that: Abortions Roe/Casey doesn't protect are already pretty much illegal in Texas, so presumably aren't happening, at least not openly. And the requirement to check for a fetal heartbeat isn't exactly onerous.

          So you're only concerned about frivolous lawsuits, and lawsuits against the protected abortions.

          In both cases, while the state law doesn't allow sanctions, federal courts wouldn't be bound by that, so I doubt you'll get many lawsuits before people decide that they're just incurring too much in the way of sanctions to impose limited litigation costs on abortionists.

          1. Yeah, but they are filing in state court, not federal court. But, you say, the defendants can remove to federal court. Even if theoretically true, there are pretty strict procedural requirements to avoid waiving that right. Add to that, given you think the law is still valid regarding abortions not protected by Roe/Casey, there are plenty of "close to the line" cases (because unless Roe/Casey are overruled, there will be continue to be lots of good faith and bad faith litigation about where, exactly, that line is) that plenty of plaintiffs would feel comfortable taking litigating the matter. Will a young pregnant woman know where the line is? Will the people advising her be accurate and honest (some may wrongly assure her she is on the safe side, some may scare her into thinking she's on the "you owe $10k" side). Again, a relatively poor woman who had an abortion will have to come up with the money up front to hire an attorney to maybe get her attorneys fees back if some family member she hates or local church leader decides they want to punish her. This law is just ripe for all sorts of abuse.

            1. Maybe you should read the law, before commenting on it? She's not on the hook, it's the abortionists and others who facilitate the abortion who are.

              And, yes, I'd advise them to know where the line is, and avoid it, just like any other law where there are edge cases.

              1. The woman getting the abortion isn't facilitating it?

              2. Fair enough that the person who gets the abortion is exempt from liability, but not her mother, father, boyfriend, friend, etc., who likely is in a similar socio-economic position, so the substance of the point still stands.

                "I'd advise them to know where the line is...." That's kind of the point, Texas is intentionally blurring the line, asserting that the line is closer to conception that the Supreme Court has ever ruled it is. For the Texas law to be enforceable, the Supreme Court would have to draw a new line, and Texas purports to impose retroactive liability if the Supreme Court does draw a new line. You are smart enough to know that this is not "just like any other law here there are edge cases."

                The law was specifically crafted to create maximum ambiguity and maximum penalty for guessing incorrectly as to where the line is. Stop pretending otherwise or that this was not intended to and does not have the effect of being extraordinarily chilling even with respect to abortions that currently are comfortably on the protected side of the Roe/Casey line.

                1. Maximum ambiguity? Are you kidding here? This law draws a line that's microscopically sharp:

                  1) At any point, test for fetal heartbeat. Document the result.
                  2) If it isn't found, you're good to go.
                  3) If it IS found, can you demonstrate a genuine threat to the life of the mother? (None of this, "But a normal pregnancy isn't perfectly safe, so it counts as a threat to the mother's life!" crap.)
                  4) If you can, document it, and you're good to go.

                  The problem here isn't that they failed to draw a clear line. It's that you don't like WHERE they drew it.

                  1. Yes, because no one will challenge the determination that a heartbeat wasn't found. And no one will challenge the physician's determination that there was "a genuine threat to the life of the mother". In fact, your very comment betrays that you disagree with some other people as to what constitutes "a genuine threat". Where is that clear, object line, Brett? There isn't one, obviously, unless you are willing to sign on to the physician's determination without second-guessing.

                    And, set aside, that you and the law's drafters probably really intend "pulse" rather than "heartbeat" because there is no heart, hence impossible to have a heartbeat, until at least a week or two after the pulse is first "possibly" detected. I say possibly, because it depends on the method you use to try to detect it as to when it will be noticeable. Which further raises the possibility of second guessing what you pretend is a straightforward "test for fetal heartbeat. Document the result....good to go."

                    And, of course, you know the ambiguity comes from "aids or abets" who does that reach, all of the factual determinations that the physician must make and which a judge/jury has to decide were made correctly and in good faith, the purported retroactivity provision, the various other procedural protections for plaintiffs and stripping of procedural protections for defendants. Litigation is inherently uncertain and litigation under this law is perhaps abnormally so.

                    And the ambiguity is compounded for people who aren't the physician, but who assist the physician. They can be on the hook if the physician is determined by a jury to have made some mistake. The boyfriend who brings his girlfriend to the clinic (or her sister, brother, father, mother, friend, etc.) as well as the receptionist, the person who pays for the procedure, etc., all have no way of protecting themselves. You can be liable for aiding or abetting "regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter." Basically, assist in any way (including by providing insurance) with an abortion and you will be held liable if a judge or jury later determines that that abortion didn't comply with SB8.

                    Only fools would think with certainty that they were safe from a $10k judgment after any given abortion, at least until the Supreme Court strikes down the law.


          Prevailing defendants are routinely *not* entitled to attorney's fees, much less as a matter of constitutional right.

          The lop-sided (1-way only) fee shifting feature of SB8 is nothing special, and if the plaintiff in an SB8 suit is proceeding pro se (which described all three potential test cases current pending in Texas district courts), there are no fees to be shifted to Dr. Braid (or his attorneys) because none were incurred by the plaintiffs.

          Texas courts would presumably follow Kay v. Ehrler and concordant state caselaw. And Felipe Gomez even makes it a point to be litigating pro se, rather than as a pro se attorney, so he can't even ask for fees under the DJA (or SB8) as an attorney for himself in departure from the Ehrler holding. And Oscar Stilley couldn't even apply for PHV admission as long as he remains disbarred.

          The ability of health care professionals to recover attorney's fees under Texas law (Texas Medical Liability Act) when sued is a gift from the Texas Legislaure and a part of "tort reform" more generally. So the industry and their attorneys, are -- if you will -- spoiled. But that legislated benefit and resultant hubris doesn't make a fee award for defendants a constitutional entitlement. It's a plainly a policy choice by the Legislature.

          Generally, Texas follow the American Rule (each pays their own) and even the main fee-award statute - CPRC 38 for contract and similar claims related to market transactions - does not authorize fee shifting in favor of prevailing defendants.

          Indeed reciprocal fee-shifting provisions in statutes are the exception rather than the rule. One such rare example is the Texas Theft Liability Act. Even Texas attorneys slip up occasionally, failing to realise the risk of losing on a TTLA claim, and their client being saddled with the other's side's attorney's fees for successfully defending such a claim. That risk wouldn't attach to a common-law conversion claim thanks to the American rule, which are often pled as an alternative legal claim in the same lawsuit. Arguably there are good policy reason for the legislature having authorized fees for the theft-act defendant because the TTLA, though a civil statute, relies on the criminal definition of theft. Such a claim can thus be rather damaging even if "only" alleged in a civil lawsuit against a business or person.


          Texas Theft Liability Act. See TEX. CIV. PRAC. & REM.CODE § 134.005(b) (“Each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney's fees.”)


          Jones v. Coyle, 451 S.W.3d 486 (Tex.App.-Dallas 2014)(“The central thrust of appellant's argument is that it would be just, fair, and right for the legislature to have provided for fee shifting to adversaries of personal representatives who withhold the estate's property. Such policy decisions, however, are appropriately left for the legislature and we decline appellant's request to judicially alter the balance of rights struck by the legislature in section 242. Because section 242 does not authorize appellant's attorneys' fees to be shifted to appellee, we resolve the first issue against appellant.”)

          1. Can you identify one one-way fee shifting statute anywhere in the U.S., state or federal, that says that even if a lawsuit runs afoul of Rule 11 (or a state equivalent), the court cannot award attorneys' fees to the defendant?

          2. I totally agree that a one-way fee shifting statute that explicitly permits frivolous lawsuits, overriding longstanding law and policy, is radically new and a clear indicator this is something very, very different from traditional civil tort statutes.

  3. "The demand for a limiting principles is part of a demand for principles—a demand that the Court be principled in reaching its decision, that its judgment follow from premises that it's willing to defend in other cases too."

    Exactly this.

    1. I have no doubt that the actually principled conservatives, i.e., Roberts, will have no trouble specifying that laws that put a bounty on constitutionally protected behavior and encourage everyone in the state to seek those bounties (through procedural advantages, retroactivity, and fee-shifting) must be subject to pre-enforcement challenges.

      Of course, whatever standard is put in place, the Mitchells of the world will then set to work crafting a law that tries to avoid those problems (e.g., if standing is the "principle", then the law will be crafted such that only people related to one of the genetic parents of the embryo/fetus within five degrees of consanguinity or some such idiocy and the Court will strike that down as too attenuated, so they'll pass one with four degrees, etc., etc.).

      I'm almost happy Mitchell is not the genius some purport, as he drafted the law with not just a couple objectionable aspects, but one that is so obnoxious to nearly every principle of due process and fair play that even Roberts, Barret, and Kavanaugh are gonna be like, naw.

      1. Degrees of consanguinity, not to mention wackiness in purportedly intelligent post-birth discourse ...

        HUMAN REPRODUCTION 101 (What causes pregnancy?)

        So, the biologicial fact that sperm is an essential ingredient and needs to meet and be admitted to the egg is now "idiocy"? First-party and equal degree of consanguinity? - Oh no. Unthinkable thought. Must be suppressed.

        Remedy for such idiocy can be found here:


        Also, be reminded of the commensurate "idiocy" of contemporary policymaking bodies of prescribing the use of DNA tests to establish male parentage as a scientific/empirical/factual basis for establishment of the legal parent-child relationship and liability for performance of parenting role in some way or other for 18 years, including birth-related medical services costs.

        Which is not to say that there weren't sound common-law and common-sense policy reasons for the legitimacy principle and Lord Mansfield's rule in the olden days when not even blood tests were availabe to make guesses about paternity and narrow the field of potentially responsible first-degree parties.

        1. "the biologicial fact that sperm is an essential ingredient and needs to meet and be admitted to the egg is now "idiocy""

          Your reading comprehension is seriously impaired. Re-read this:

          Of course, whatever standard is put in place, the Mitchells of the world will then set to work crafting a law that tries to avoid those problems (e.g., if standing is the "principle", then the law will be crafted such that only people related to one of the genetic parents of the embryo/fetus within five degrees of consanguinity or some such idiocy and the Court will strike that down as too attenuated, so they'll pass one with four degrees, etc., etc.).

          The point being, purporting to give standing to someone five degrees of consanguinity away from the embryo is idiocy because most people that distantly related don't know you and generally have no articulably greater interest in that embryo than one to which they are entirely unrelated.

          So, yes, giving standing to everyone within five degrees of consanguinity to object to an abortion is idiocy.

          1. Thanks, the reading comprehension is just fine. Two more points on nonrandom standing:

            (1) States get to decide on their own standing rules. So here, the Texas Supremes gets to say to what extent to parrot Lujan. Article III, after all, does not apply to state courts of general jurisdiction. They may also defer to the Texas Legislature, which is particularly likely in this particular policy area. Note that all 9 SCOTX members are Republicans and have ideological "consanguinity" with the two majorities in Texas House and Senate that enacted SB8. So, they might be even more inclined to give effect to legislative intent (protecting unborn life to the greatest extent possible under SCOTUS-fashioned national abortion policy).

            That said, they will also have to consider the risk of being overruled by the SCOTUS based on the federal doctrine. Acknowledgement of standing (by SB8 plaintiffs or some subset thereof - persons sharing a lot more DNA with the fetus than the general public, for example -- doesn't preclude a merits attack on SB8's constitutionality. Bottom line: SCOTX may reduce standing to bring SB8 suits to individuals who cannot by any stretch be dubbed random strangers.

            (2) Suppose you are right and 5th degree on consanguinity is not enough (as a policy matter) to state a claim under the threshold test for standing. How does that negate the role of the sperm-provider in the conception of a particular human fetus as a factual matter, and the resultant stake in the fate of the carrier of the new combo of maternal and paternal DNA? It's not just a matter of degree of consanguinity. The first-degree status is already recognized as being different in kind because it is basis for establishment of legal parentage (while grandparentage is a much iffier proposition). Also note how SCOTUS and state law treat grandparents differently from parents.


            Texas Family Code provides for grandparent standing but gives only limited opportunity to seek legal rights to grandchildren through conservatorship (child custody) orders.

            Tex. Fam. Code Sec. 153.432. SUIT FOR POSSESSION OR ACCESS BY GRANDPARENT (authorizing biological or adoptive grandparents to request possession of or access to a grandchild). Step-grandparents do not have standing to seek access to their step-grandchildren. See In re Derzapf, 219 S.W.3d 327, 331-33 (Tex. 2007).

            1. Yes, many states, if not all, recognize the standing of grandparents to seek visitation and/or custody, although the strength of the claim varies widely by state, I think. But that is entirely irrelevant to the current discussion.

              "Suppose you are right and 5th degree on consanguinity is not enough (as a policy matter) to state a claim under the threshold test for standing. How does that negate the role of the sperm-provider in the conception of a particular human fetus as a factual matter, and the resultant stake in the fate of the carrier of the new combo of maternal and paternal DNA?"

              I generally find that people who ask others to defend positions the questionee never took to be operating in bad faith.

              You are linking one concept (whether 5th degree of consanguinity is too attenuated to comport with standing and other principles that protect constitutional rights) with another (whether sperm donors should have any say in the course of the pregnancy).

              There is no ideal solution to unwanted pregnancies. Obviously, it would be better if the only pregnancies were pregnancies that all DNA donors wanted. But we live in the real world. In the real world, once a man has donated his sperm, all of the costs (in terms of actual cost, physical health, and mental health) of pregnancy are borne by the woman. The man doesn't have to consider any of those costs, so I don't think a man should get to decide that a woman has to subject her body to a pregnancy if an abortion is otherwise allowed under the law. (Which it currently is and will be in the US for the foreseeable future.) There are simply too many moral hazards and injustices in giving a man veto power over a woman's choice with respect to her body.

  4. "Courts are expected to be open and forthright about their justifications, rather than to call them as they see them. And if the Court isn't willing explicitly to limit its prior language in Ex parte Young, Hansberry v. Lee, Taylor v. Sturgell, etc., then it shouldn't adopt a rule in this case that abrogates that language sub silentio."

    But isn't that exactly what this Court has done in its recent shadow rulings? And isn't that how we got into the current docket on the Court with respect to SB 8? By allowing the law to go into effect didn't the Court just rule that the mechanism in the Texas law to allow the denial of Constitutional rights is legal until years of litigation might rule it illegal, with no explanation, no hearings, no formal opinions and no procedural safeguards?

    Actually, this case is beneficial at this time. The nation must decide whether or not a state may through legal chicanery abrogate, at least for the many years it takes litigation to be completed, specific Constitutional rights. And if those who loudly profess their allegiance to the Constitution support this legal con job because the results align with their policy preferances are successful, then the end of the United States as a nation of laws is in sight, and if that is happening the sooner we know it, the better.

  5. I really think there's a lot of bad faith in Prof. Sachs' posts. This is an outrageous statute. If nothing else, SCOTUS can nullify it as a one-off. Just say that SCOTUS itself will issue a writ against any court that accepts an SB8 suit for filing. No doctrines AT ALL would be harmed.

    Sachs wants to save this terrible statute and is hiding behind a bunch of procedural games.

    1. To be clear, my point is that this statute is so extreme that SCOTUS can impose literally any remedy it wants to, and then say it's limited to identical statutes. You don't have to create a doctrine that applies to any other situation.

    2. " If nothing else, SCOTUS can nullify it as a one-off. "

      What evidence is there that conservative justices would do that?

      Since December 12, 2000, I mean.

  6. "To date, the Court maintains that Hans v. Louisiana was correctly decided (and I agree with them!)" [link to law review article]

    With the aid of CTRL-F, I looked at the linked article and found this:

    "And though Supreme Court decisions like Hans v. Louisiana wouldn’t
    win any prizes for draftsmanship, on a careful reading they may have
    understood this distinction. After its references to the Eleventh Amendment,
    Hans went on to note the preratification arguments made by Hamilton,
    Madison, and Marshall (calling them “most sensible and just”); to argue that
    'the suability of a State without its consent was a thing unknown to the
    law'; and to speak of a 'presumption that no anomalous and unheard-of
    proceedings or suits were intended to be raised up by the Constitution.' In
    other words, Hans can be read as an Article III case, rather than an Eleventh
    Amendment case."

    I'd say that the original intent doesn't have a role here because the text of Art. III is fairly clear.

    It says the jurisdiction federal courts includes cases under the constitution and laws pursuant to it, and that the Supreme Court will have jurisdiction over cases where a state is a *party.* It doesn't say cases where a state is plaintiff, or cases where the state is plaintiff *or* is sued by the U.S.

    A citizen suing his own state based on the constitution or a valid Congressional statute is a case where a state is a party. If originalism is supposed to clear up ambiguities in the Constitution, where's the ambiguity?

    What would be "unheard-of" would be for the *sovereign* to be sued without its consent. The sovereign in the USA is "we the people of the United States" - however that's defined, it doesn't mean a single state.

  7. If congress won't act (especially if one party likes the way S.B. 8 scheme works), and the courts can't (or shouldn't) act, what does sachs say about the extended period of time in which constitutional rights are effectively denied? Especially if defensive posture court cases don't happen, or if they do happen, need to be repeated endlessly.

    I suppose that he would say that voters have to vote out whatever legislators think that the S.B. 8 scheme is a great (or genius) idea. However many years or decades that might take.

    If Ilya's well-reasoned post to this blog raises a different question than the one that sachs or the court is facing, why not ask that different question?

    When I noticed that the sachs guy was a guest on yesterday's "We the People" podcast, I hoped that Ilya would be the other guest, so that there could be extended debate directly about Ilya's well-reasoned post to this blog. But it was not to be. The sachs guy annoys me to no end, especially during his annual stare decisis takedowns at the federalist society.

    Although sachs did a good job of defending his position in yesterday's "We the People" podcast, the Ilya argument was not raised, so I'm glad that the sachs guy at least gave a very brief (but weak) response to Ilya here today.

  8. This argument proves too much. It doesn't matter that you think these rights have the opportunity to be vindicated defensively. On this view if Gavin Newsome found some trick where they could technically cede some land to a foreign sovereign and use some tricksy legalese to block (on current precedent) any means of challenging arbitrary detention of congressmembers or anyone else Newsome dislikes without habeus review the court needs to just shrug and say two bad,

    The principle that the court doesn't let rights be violated with impunity based on legal technicalities is a kind of meta-principle.

  9. Why resort to reason when there is ...


    All you abortion-über-alles folks need to render the ad-hominem attacks on fellow academics for lack of good counter-argument superfluous is a new categorical imperative, which, for good measure can be grounded in centuries if not millennia of intellectual tradition and is recognizable only as mumbo-jumbo by the vulgar strata of the realm:

    Proposed doctrine moniker: "Homunculus esse delendam"

    Okay, so perhaps "homunculum" to be case-specific, though "homunculo" might be more memorable and pleasing to the plebs-at-large, including the Spanish-capacited segment thereof.

    DISCLAIMER: Just one contemporary's two ceterum censeos.

    IDEA CREDIT: General occidental nontangible patrimony. For further study:

    CONTRA: Zero tolerance policy for Free Speech activity concerning Fourteenth Amendment status of human fetuses (previously defined by the Supreme National Abortion Policy Council as "potential life").

  10. Godwin strikes again.

  11. Yup, sometimes SCOTUS faces hard questions and has to extend or modify existing precedent in a short period of time. Say you're right about what existing precedent demands. That just illustrates that these facts point to a conflict between established principles of law (some explicit precedent others, arguably stronger, principles about not allowing tricks to evade substantive constitutional obligations).

    What I don't think you can support is the implied conclusion in each of your arguments: namely that the court shouldn't enjoin the law. The exact same arguments could be given with the conclusion of: guess the court had better overrule/modify EPY and allow judges to be enjoined or even just eliminate the whole enjoined parties fiction and simply hold that they *literally* have the power to rule a law is null and void.

    The court can (as in Bush v. Gore) choose to limit their decision's precedential value to the facts of the case (recognizing their more likely to make a mistake on a short time frame is a reason to limit the precedential impact not justification to ignore a constitutional violation).

    1. And yes, I realize that in some sense the court would be answering a different question than what is theoretically before the court, but when that's because the court boxed itself into a corner as a result of prior precedent it's not appropriate to say: sorry you didn't guess the particular precedent we would overrule so no relief for you.

  12. I’ve made my main points in other posts. I agree that:

    1. The Supreme Court will be able to find a workable set of people the plaintiffs can sue by a slight extension to Ex Parte Young, e.g. holding that private attorneys general are agents of the state and can be sued by suing the attorney general and associated agents or some similar formulation.

    2. This statute is patently unconstitutional regardless of what one thinks of Roe. For example, the fee-shifting provision is not merely one-way but overrides frivolous lawsuit provisions. Defendents can never get sanctions against plaintiffs no matter how egregious their misconduct. This feature is not present in any other enactments. It is a clear indicator the legislature is intending lawsuits for purposes of harassment, and not to redress legitimate greviances of any kind.

    It is one thing to enact an unconstitutional law. Legislatures do that from time to time. It is another to enact a law specifically designed to use the processes of the judiciary to harass people who exercise constitutional rights.

    It simply doesn’t matter what one thinks about the underlying right. If the approach is legal, it could be done for any right.

    1. In extending Ex Parte Young, the Court will be careful not to overrule or contradict it. So the set of suable parties won’t include the state’s judiciary, which Ex Parte Young held was immune. And just as congressional immunity extends to aids, I would expect judicial immunity extends to clerks and assistants.

    2. 1. As this Texas-based commentator has previously pointed out, the concept of "private attorneys general" is alien to Texas law, and the Texas AG's role in the Texas structure of government differs from that of AGs elsewhere. The Texas AG generally has no role in civil lawsuits between private parties unless the state or state agency, officers, or state employee is a party, except for having to be given notice when a private party challenges a state statute as unconstitutional. Nor is the Texas AG the chief prosecutor. He is the state's chief lawyer. But that gives him no ability to exercise control over private SB8 litigants. And the comparison with other states' penal heartbeat acts or other abortion restrictions is inapposite because criminal prosecutions are handled by independently elected DAs and county attorneys in Texas. So the AG would not be a proper official to enjoin even if courts were to contradict the Texas legislature and were to deem SB8 (quasi)penal. Also, the general rule is that anyone can sue anyone even if there is no jurisdiction or no cause of action. Some pro se litigants file handwritten complaints that are off the wall and doomed from the get-go but end up on the docket anyhow. The matter of jurisdiction and an actionable cause of action will have to be addressed by the judge at the appropriate time, not the clerk that dockets the case, and is typically raised by plea to the jurisdiction or rule 91a motion to dismiss. If neither party files anything further, a pending case will typically be dismissed for want of prosecution (DWOP) as a matter of standard operating procedure, after notice required by due process and rule 65a, rather than for want of jurisdiction.

      2. There is no constitutional entitlement to attorney's fees as a sanction against an opposing party and trial courts always have inherent power to assure proper conduct by litigants even if no motion for sanctions is filed by a party, That includes contempt powers and the ability to strike pleading. If attorneys misbehave, the judge can report them to the State Bar for discipline. Just because a statute bars rule 91a or rule 13 fee awards doesn't make it unconstitutional. The general rule for fee-shifting is the American Rule, and the Lege gets to decide on exceptions to the each-pay-own regime as the Lege sees fit. In any event, even if there were a viable argument as to the constitutionality of the specifics of fee-shifting in SB8, these provisions would be subject to severance, thus preserving whatever other parts of SB8 pass constitutional muster. And since SB8 provides a statutory cause of action that encompasses post-viability abortions not protected by Casey, it could only be unconstitutional in part/as applied unless the private enforcement mechanism as such is ruled unconstitutional. Assuming it is, one might envision the SCOTUS invalidating the mechanism, but leaving the proscription of post-heartbeat abortions in place without any means of public or private enforcement. This would be an outcome scenario not yet part of the discussion among the jurisprudentially erudite.

      3. Most people and entities don't like being sued (unless they have been luring someone into bringing a test case perhaps), so any lawsuit can be characterized as "harassment", along with the legal basis for it, whether a common-law cause of action or a statutory one. To say that a lawsuit (or a class of lawsuits) is "harassing" assumes a particular outcome a priori, an outcome that would result from the litigation that has not yet taken its course. As such, the commentator labeling a particular suit (or class of actions) as "harassing" is substituting their own opinion (in the from of pre-judgment without the benefit of evidence and application of the law to the facts) for that to be rendered by the judge. With what authority? And why should such claim be accepted, in lieu of awaiting the decision of the judge in the referenced case(s), and the subsequent appellate history, if any?

  13. And by the way, Alito’s intemperate defense of the law is the sort of thing that drives moderate conservatives to liberalism.

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