The Volokh Conspiracy
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The SB8 Endgame
How are the remedies supposed to work?
The more I think about it, the more confused I am by how the various SB8 challenges are supposed to work, even if they succeed. Consider the following outcomes:
An injunction granted to the provider plaintiffs, barring a defendant class of state court clerks from accepting SB8 suits. An SB8 plaintiff (call him Joe) goes to a Texas state court to file his lawsuit and demand his $10,000. The clerk obeys the injunction, so she refuses to docket the complaint. That seems like a due process and petition-clause problem, insofar as the clerk is preventing Joe from obtaining a judicial determination of his rights, from a court with jurisdiction over the case, and under a statute which he argues is fully constitutional. (Say there were no injunction, and the clerk just went ahead and tore up Joe's complaints anyway; surely a § 1983 suit would follow.)
The working assumption here seems to be that these problems don't matter, because everyone knows that SB8 is unconstitutional in substance. But whatever kind of suit the Court might authorize in this case would have to be available in other cases, against other statutes which might turn out in the end to be fully constitutional. (The question of who's a proper plaintiff or a proper defendant doesn't depend on who's right on the law.) And remember that SB8 itself may be fully constitutional; Joe has as much right to argue for the overruling of Roe and Casey as have the petitioners in Dobbs.
So Joe sues the clerk in federal district court under § 1983—for depriving him, under color of law, of the right to file his lawsuit, as protected by the First and Fourteenth Amendments. At this point, the state clerk can't point to the injunction as a full defense, because Joe isn't bound by it: he wasn't made a party to the providers' lawsuit, and his rights can't be determined by what that judgment said. Per Hansberry v. Lee, "[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Instead, the clerk now has to argue that the injunction was properly issued, and that she ought to be prohibited from accepting Joe's complaint. If the providers' case has already been decided on appeal, maybe the district court will be bound by that precedent in the new lawsuit between Joe and the clerk; but again, Joe has as much right to argue for that precedent's overruling as anyone else.
At this point, given the possibility of dueling injunctions under § 1983, one should ask whether the providers can really sue the clerks without making Joe a party. In the language of Rule 19, Joe claims an interest in the subject of the providers' action (at least $10,000's worth), and disposing of the case without him would impede that interest, or else would leave the clerk subject to double or inconsistent obligations. Given that there isn't any good way of shaping the relief to prevent prejudice to Joe's interests, and given that no judgment in his absence could protect the providers from having the issues relitigated (at least not without violating the Due Process Clause as to Joe), arguably no suit can go forward without him there, and their action has to be dismissed for failure to join a required party.
The relitigation point needs emphasizing. Say the providers win before the Supreme Court and again before the district court on remand, getting their injunction against the clerks. They start going ahead and performing abortions. Their injunction can't bind Joe, so if Joe files his suit against the clerk and wins, he can re-file his SB8 lawsuits against the providers regardless of what the district court's injunction said. (The same is true if we make Joe go back to the initial district court and get the injunction lifted first.) The chilling effect is still there—or, if it isn't, it's only because the providers were tricked into violating a Texas statute under the impression that their conduct would be protected under an injunction. Maybe enjoining a prosecutor might arguably prevent future prosecution for past acts, even after the injunction is lifted. But unless the Court wants to abrogate this part of Hansberry, enjoining a state clerk can't get between a nonparty like Joe and the $10,000 he claims is legally his.
(Side note: does Texas have notice pleading? If a complaint only needs to plead facts, and not legal theories, will the clerk be able to tell the difference between, say, a complaint alleging medical malpractice involving an abortion and one alleging both medical malpractice and an SB8 theory?)
(Side note 2: a reader writes in to note that state clerks are no more suable under Ex parte Young than state judges, though the providers now downplay their claims against the latter. The whole "machinery" of state courts—including grand juries, and not just judges alone—are outside the scope of Ex parte Young:
It is proper to add that the right to enjoin an individual, even though a state official, from commencing suits under circumstances already stated does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature, nor does it include power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our government. If an injunction against an individual is disobeyed, and he commences proceedings before a grand jury or in a court, such disobedience is personal only, and the court or jury can proceed without incurring any penalty on that account.
The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former.
Clerks are plainly "part of the machinery" of a state court; enjoining them would plainly "restrain a court from acting in [a] case brought before it," as well as preventing "courts from proceeding in their own way to exercise jurisdiction." So there's no way for the Court to let the suit against clerks go ahead, unless it wants to abrogate this part of Ex parte Young.)
An injunction against the Texas Attorney General, barring him from enforcing SB8, and extending to the private plaintiffs. It's not clear that the Texas AG enforces SB8 directly; the parties argue about this as a matter of Texas law. (If the Supreme Court wanted, I suppose it could say "that's a complicated question of state law, let's certify it over to the Texas Supreme Court," thus kicking the can until Dobbs is argued.) But it was also suggested that, as SB8 plaintiffs like Joe are acting like private attorney generals, they'd be bound by any injunctions entered against the real attorney general. On this theory, Joe would file his lawsuit in state court, at which point he'd be hauled into the federal district court for contempt proceedings, prevented from pursuing the litigation any further.
If the theory worked, it would actually protect the providers from lawsuits like Joe's. But the theory doesn't work. Taylor v. Sturgell said that courts should be "cautious about finding preclusion" on the ground that new parties like Joe are really just the "litigating agent for a party to the earlier case"; "[a] mere whiff of 'tactical maneuvering' will not suffice." Instead, what makes a new party an agent for the old one are "principles of agency law"; in particular, whether the new party "is subject to the control of the party who is bound by the prior adjudication." There's no argument that Ken Paxton is secretly controlling future SB8 lawsuits, much less that a new plaintiff like Joe has any obligation to do what the Texas AG tells him. And as the Texas SG pointed out, this isn't a qui tam lawsuit in which the state can take over the litigation. Again, Joe isn't bound by a judgment in a case to which he wasn't made a party—the opinion in Taylor opens with that same famous quotation from Hansberry—and he wasn't represented by proxy by the Texas AG either. So there's no way for the Court to rule on this ground without abrogating that part of Taylor v. Sturgell.
An injunction against the State as a whole, extending to the private plaintiffs. Under Rule 65(d)(2), anyone who aids and abets the bound party in violating the injunction—anyone "in active concert or participation" with them—is also bound, as long as they have actual notice. So, on the theory advanced by the U.S. and by the district court's order, anyone who files an SB8 lawsuit and is aware of the preliminary injunction violates that injunction and can be put in contempt. The idea here is that Texas is engaged in a scheme, and it's using the private plaintiffs as part of that scheme, so therefore the private plaintiffs are aiders and abettors who can be bound.
But there are two problems with this approach. The first problem is that Rule 65 was adopted under the Rules Enabling Act. If Joe really does have a right to collect $10,000 under state law, then Rule 65(d)(2) can't abridge, enlarge, or modify that substantive right. At best it can determine—maybe—whether the State serves as his representative in defending that right in court, so that he'd be bound by whatever judgment was reached against it. But the State has explicitly disclaimed any role in doing so here, and there may be real procedural due process problems in foreclosing Joe from challenging any outcome in United States v. Texas.
The second problem is that ordinary citizens, by demanding money for their own pockets under Texas law, aren't in "active concert or participation" with the State of Texas—at least not in any sense that the courts would recognize elsewhere. Think about a tax refund lawsuit: a Texas taxpayer argues that she's overpaid her taxes and wants some of her money back. If she wins her claim, advancing a better interpretation of Texas revenue law than that of the Texas Comptroller's office, is she "in active concert or participation" with the State, because she relied on its law to obtain relief, in accordance with the Texas legislature's intention to impose only so much in taxes and no more? If the Texas legislature permits tax deductions for charitable contributions, with the intent that people then give more to charity, is this the sort of scheme that turns individual taxpayers into aiders and abettors?
As I've argued before, this theory confuses Texas-as-litigant with Texas-as-source-of-law. True, SB8 plaintiffs like Joe are making use of Texas law—admittedly, a rather unusual law, perhaps like California's false advertising law in Nike v. Kasky, in that it permits citizen suits without a showing of individual harm. But they aren't in league with the State-as-party-appearing-in-court, the party against which any injunction would be entered, which often loses under Texas law, and which might heartily disapprove of the relevant statute. (Suppose that after the next election, the Texas Governor and AG agreed with the providers and the United States, arguing that SB8 was wildly unconstitutional; would Joe still be an abettor of the enjoined party, if the entire executive branch of Texas wanted him to lose?)
The question under Rule 65 isn't whether, by bringing suit, Joe is causing the aims of the Texas legislature to be better achieved. The question is whether, by bringing suit—even in federal court under diversity jurisdiction, or in the courts of other states—he's helping Texas in the act of violating the injunction. Consider a case decided by Judge Learned Hand, involving a salesman who quit his job for a patent-infringing employer and went into business selling the patent-infringing products for himself. The court held that the salesman was not violating the injunction entered against his employer, because he was acting for his own account:
We agree that a person who knowingly assists a defendant in violating an injunction subjects himself to civil as well as criminal proceedings for contempt. This is well settled law. * * * On the other hand no court can make a decree which will bind any one but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court. Thus, the only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party. [emphasis added] This means that the respondent must either abet the defendant, or must be legally identified with him.
* * *
* * * [I]t is not the act described which the decree may forbid, but only that act when the defendant does it.
This is far from being a formal distinction; it goes deep into the powers of a court of equity. * * * The unlawfulness of [the respondent's] conduct has been determined, and, if he has not been a party and has had no day in court, he is condemned without hearing. It is by ignoring such procedural limitations that the injunction of a court of equity may by slow steps be made to realize the worst fears of those who are jealous of its prerogative. The District Court had no more power in the case at bar to punish the respondent than a third party who had never heard of the suit.
So what can the Court do? The Court is being asked to make very significant innovations in procedural law on a very tight timetable. The danger is that it will fall into the familiar fallacy, that
- Something must be done.
- This is something.
- Therefore, this must be done.
What the SB8 challengers really need is a statutory right to preenforcement review. Maybe Congress could, under Section Five, create a VRA-like preclearance regime for abortion regulations, or for new state causes of action that lack any requirement of individual harm. Maybe Congress could provide for proceedings in which States represent their citizens' interests in any case involving citizen suits, solving the procedural due process problems somehow. Or maybe it could authorize the United States to sue to enjoin constitutional violations broadly, wherever or whenever they occur. But if Congress hasn't done any of this, the Court can hardly go ahead and invent these remedies for them.
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