SCOTUS Does Not Decide S.B. 8 Cases

The longer this delay lasts, the less likely that Texas will lose.


This morning, nearly 3,000 people were glued to SCOTUSblog, waiting for the S.B. 8 cases. Instead, we got Rick Roll'ed.

Chief Justice Roberts wrote the majority opinion in Mississippi v. Tennessee. This SEC match involves something about aquifers. "Layers of rock, clay, silt, sand, and gravel exist below the Earth's surface," the Chief tells us.

As a general rule, the longer the abortion cases stretch, the better things look for Texas. If the Court was going to grant some interim relief, it could have put out a short stay order, followed by a lengthy opinion. But we are now three weeks from the S.B. 8 argument with silence.

A decision before Thanksgiving now seems unlikely. The Court could issue another decision on Monday, November 29. Keep in mind that Dobbs will be argued on Wednesday, December 1. Mississippi, still smarting from its loss on aquifers, will try to defend its abortion law. I'm sure a win in Dobbs will make up for the loss in the original jurisdiction case.

NEXT: The Case for Compensating Victims of Trump's Brutal Child Separation Policy

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  1. Maybe they are waiting to combine the two?

  2. The Supreme Court should announce at least a day before what decisions it will be releasing. Instead, it decided to troll us today.

    1. "it decided to troll us today"

      People making faulty assumptions is not trolling by the supreme court.

      S/C never announces what decision it is issuing.

    2. The Supreme Court has been trolling us every single day that Roberts does not retire!

  3. They should have done better at trolling. Put a cryptic reference in a footnote, "As we note in _Whole Woman's Health_, infra, sovereign immunity and its exceptions are a critical part of a District Court's jurisdictional analysis."


    Lotta hype over the weekend, and daybreak anticipation, but the non-news shouldn't be that surprising.

    Today is the due date for responses in a trio of additional petitions in the WWH v. Jackson saga: conditional cross-petitions. Since the extra-ordinary requests to put shackles on the Texas judiciary have been accorded special treatment, the condition for cross was satisfied.

    Vided: Nos. 21-582, 21-583, 21-587 atop 21-463

    One of the them is by the District Clerk of Smith County. The judge-defendant (Jackson) himself (whom she serves, inter alia) is refraining from becoming a partisan on behalf of SB8 and its GOP enactors, which makes sense given that he is sworn to impartiality as a member of the third department.
    Penny Clarkston, Petitioner v. Whole Woman's Health, et al.
    File date: Oct 21 2021, Petition for a writ of certiorari before judgment filed. (Response due November 22, 2021).


    Whether the Court should overrule Roe v. Wade, 410
    U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

  5. Winner: Texas

    Losers: The Rule of Law
    The U. S. Constitution
    The integrity of the Supreme Court
    American Women

    1. Another day that some babies who otherwise would have been aborted, aren't.

      It would violate the U. S. Constitution only if there is a constitutional right to an abortion.

      1. Don't you agree that we all have to go with the instantaneous state of the law unless and until it is changed?

        Someone could say that stopping corporations from buying off politicians with truckloads of monthly cash would violate the U. S. Constitution only if there was a constitutional right for corporations to buy off politicians with truckloads of monthly cash.

        The response to that person might be, there is such a right, not expressly in the constitution, but as interpreted in Citizens United v. FEC.

        The reply to that might be that is was wrongly decided, and there is 100 years of prior precedent saying otherwise, so there is no such right. And if we stop politicians from being bought off in the meantime, all of that corruption has been stopped.

        But that is a nonsense argument. Celebrate all you like on the day that roe and casey are killed off, but if you want others to respect that reversal (and you should want that), then you should respect the state of the law today.

        1. He only cares about the end of making abortion illegal, and doesn't care about the means. And like almost all anti-abortion zealots, he has no humility in his questionable belief that zygotes and embryos are human beings and that killing them is murder.

          1. Humility (Hugh MIL uh tee), n., a quality which they other guy ought to have more of.

          2. "doesn't care about the means"

            Projection. Roe and Casey were unconstitutional decisions by people to whom the end (legalizing abortion) was more important than the means (staying within the Constitution).

            Even many supporters of the result either admit Roe was wrong, or at least admit the reasoning was bad.

        2. The state of the law in Texas is the that Heartbeat Act (SB8) was duly enacted by the Lege, signed by the Governor, and went into effect on Sep. 1, 2021. Per Texas jurisprudence, the presumption of constitutionality applies and must be overcome by a plaintiff who challenges the law as unconstitutional.

          Here is some authority:

          A statute is presumed constitutional, and the party challenging the statute bears the burden to demonstrate its unconstitutionality. Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 55 (Tex. 2014).

          In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005) ("An analysis of the constitutionality of a statute begins with a presumption of validity).

          Statutes should be interpreted “in a manner to avoid constitutional infirmities” when at all possible. Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994); Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011). Indeed, courts should not presume the legislature intended to violate the United States Constitution or Texas Constitution. Tex. Gov’t Code § 311.021(1) (“In enacting a statute, it is presumed that compliance with the constitutions of this state and the United States is intended.”).

          Link for Texas Code Construction Act:

          1. "Statutes should be interpreted “in a manner to avoid constitutional infirmities” when at all possible"

            This runs against your argument but I'm aware that isn't obvious to you.

        3. "Don't you agree that we all have to go with the instantaneous state of the law unless and until it is changed?"

          Once again, you're taking the side of Stephen Douglas against Abraham Lincoln in their debate over the Dred Scott case. As your man Douglas summarized it when debating Lincoln in 1858:

          "[Lincoln] makes war on the decision of the Supreme Court, in the case known as the Dred Scott case. I wish to say to you, fellow-citizens, that I have no war to make on that decision, or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not. Hence I do not choose to go into an argument to prove, before this audience, whether or not Chief Justice Taney understood the law better than Abraham Lincoln. (Laughter.)"

          Embrace your ideological ancestors!

      2. "It would violate the U. S. Constitution only if there is a constitutional right to an abortion."

        Not even then.

        1. No, I'm not going to say that these techniques are OK when used against a *real* constitutional right.

    2. Go back in the archive a month or so and you will find EV's post about current laws that allow private suits that potentially infringe on protected constitutional rights.

      Most of them deal with suits that seem to be allowed for first amendment protected speech. The procedure then is to file for dismissal and cite the protected nature of the conduct at issue.

      It would not be too difficult for Congress to pass a law that allows early removal to federal court any suit that potentially infringes on constitutionally protected conduct. And then allows recovery of attorneys fees.

      And the best thing about that approach is it's equally applicable to lawsuits infringing on the 1st and 2nd amendments as well.

      1. The right to sue (petition the third branch of government, called "Judicial Department" in Texas, see Article 5 of Tex. const.) is itself a constitutional right. Such petitioning is also covered by the anti-SLAPP law (called Texas Citizen Participation Act).



        Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

  6. Rick did an exceptionally good live performance (at age 46) of his rick-rolling song during the rewind festival in henley in 2012.

  7. "As a general rule, the longer the abortion cases stretch, the better things look for Texas. "

    Because if modern America's trajectory indicates anything, it is that the passage of time is always on the side of clingers looking to send the nation back in time?

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