Abortion

More on SB 8, Reasons, and Limiting Principles - A Rejoinder to Stephen Sachs

The slippery slope risks created by upholding SB 8 threaten a vital constitutional principle - one far more important than any considerations on the other side. That is sufficient reason to rule against Texas in this case.

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In a thoughtful recent post, co-blogger Stephen Sachs responds to my own post arguing that a Supreme Court ruling in favor of Texas' SB 8 anti-abortion law creates greater slippery-slope risks than a ruling against it. My post, in turn, was in part a response to Steve's earlier post on the same topic.

In his latest contribution to the debate, Steve explains that his concern is not about slippery slopes, but about "principles":

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.

I agree that such principles are important. But my - and others' - concern about the slippery slope risks created by SB 8 is ultimately a concern about the threat posed to a vital principle. The principle at stake is that state governments cannot gut judicial protection for a constitutional right. For reasons explained in my earlier post (and highlighted by several justices during the oral argument), if Texas prevails in this case, it and other states could use similar tools to undermine a wide range of other constitutional rights, including gun rights, property rights, free speech rights, and others.

Preventing such an outcome is itself an important principle, and - in Steve's terms - a "premise that [the Court should be] willing to defend in other cases too." If a state enacts a statute that blocks meaningful federal judicial review of laws that might violate constitutional rights, courts should not permit such a subterfuge to succeed. If doing so requires overruling or limiting previous precedents on issues like sovereign immunity and limitations on the plaintiffs' ability to sue to enjoin judges (as opposed to other types of state officials), then that is what should be done. These latter principles are far less important than ensuring judicial protection for constitutional rights, and therefore should give way in cases where there is an unavoidable conflict between the two.

I outlined some of the reasons why judicial review should prevail over these other considerations in my previous post on this issue. While I would be happy to get rid of sovereign immunity almost entirely (and the same for artificial distinctions between enjoining judges and enjoining other state officials), ruling against Texas in this case would not require going  that far. The Supreme Court need only rule that sovereign immunity must give way in a case where the only alternative is to shield from challenge a state law that could create a serious "chilling effect" on a constitutional right. Such "chilling effects" already justify preenforcement lawsuits in a number of other contexts, such as freedom of speech. The case for such prioritization is especially strong when we are dealing with rights protected against states by the Fourteenth Amendment.

It may not always be easy to separate a chilling effect case from one where such a danger doesn't exist. But no more so than interpreting a wide range of other constitutional law doctrines where courts must enforce a standard rather than bright-line rule.

Similarly, the Supreme Court need not create a broad right to seek injunctions against state judges in every case (an issue Steve raises in another recent post). It could again be limited to chilling effect cases. Alternatively, the injunction could target not judges themselves, but clerks or other officials whose participation is essential for an SB 8 lawsuit (or other similar cause of action concocted by another state using the SB 8 model) to go forward. If you cannot  or will not allow people sue to enjoin the judge, let them sue to enjoin the clerk, the janitor, the bailiff, or whatever other less-exalted official needs to be stopped to forestall SB 8 lawsuits.

In my view, such distinctions between state judges and lesser officials who help judges do their work are silly and artificial. I would prefer the Supreme Court just cut the Gordian knot and rule that state judges can be enjoined in the same way as other state officials who violate constitutional rights. But if the Supreme Court isn't willing to do that, targeting the lesser officials is a far less problematic departure from principle than allowing the SB 8 subterfuge to succeed, thereby imperiling a wide range of constitutional rights.

Finally, Steve and others suggest that, even if the SB 8 strategy really does pose a grave threat to constitutional rights, the right remedy is to go to Congress to get them to enact new causes of action for victims of rights violations. This argument ignores the basic principle that a central purpose of judicial review is to protect constitutional rights in situations where elected officials are unwilling or unable to do so. If legislatures could be relied on to do that job, we probably wouldn't need judicial review in the first place.

Admittedly, the above points are unlikely to persuade those who believe that protecting sovereign immunity and judicially-created rules against enjoining state judges are more important principles than ensuring judicial protection for constitutional rights. But I'm betting that people with that rank order of preferences are very much in the minority - including on the Supreme Court.

When two principles conflict, we should prioritize the more important one. Call it a meta-principle, if you like! That too is an idea that judges should be willing to apply in future cases.

UPDATE: I should perhaps reiterate that, as I have repeatedly emphasized, this issue is not about whether Roe v. Wade should be overruled or whether abortion is a genuine constitutional right. It's about whether Texas and other states can avoid having to litigate such questoins in court by evading judicial review. And if they can do that in the case of abortion, they can do the same thing in other situations.